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I




THE GOVERNMENT
OF
THE PHILIPPINE ISLANDS


ITS DEVELOPMENT AND
FUNDAMENTALS
BY
GEORGE A. MALCOLM
Professor of Public Law and Dean of the
College of Law, in the University of the Philippines
THE LAWYERS CO-OPERATIVX PUBLISHING COMPANY
ROCHISTER, N. Y.
OMNCBE OR THE PHILIPPINES
121 ARZOBISPO, W. C., MANILA
I916




C.)PYRIGHT I916
BY
GEORGE A. MAILCOLM




Ak
le Iltninersity of tlh tllhtippines
his ilflork
3s (ratefully ~lbitrate




II




PREFACE.
For a number of years, I have valiantly resisted the
temptation to write a book on the Philippines. I should
not have been in a scanty company if I had, for the Philippines have served as a favorite topic for the ready pen of
many writers.  The casual tourist has described the
Islands, its people, and its problems without real investigation, but yet with solemn finality and comical frankness, often to the amusement of the Filipinos who see
themselves and their country held up as tremendous
psychological enigmas (see Epifanio de los Santos, 1
Philippine Law Journal, p. 247). Others have found a
field for controversy in which all facts are made to substantiate a preconceived theory. Needless to say some
few good books on the Philippines have been written.
But if anyone has tried, as I have, to read everything
available on the Philippines, they will realize the immense
mass of chaff of bias and misinformation which covers
up the grains of facts and truth (see Le Roy, Philippine
Life in Town and Country, pp. 12, 13). A few words,
therefore, may be permitted as to why still another Philippine volume is deemed necessary and as to what purpose
it is intended to fulfil.
The few books which have touched the political and
administrative side of the Philippines-William H. Taft,
Civil Government in the Philippines, Felipe Calder6n,
ABC del Ciudadano Filipino (ABC of Filipino Citizenship), Pedro A. Paterno, Gobierno Civil de las Islas
Filipinos (Civil Government of the Philippine Islands),
Iudley 0. McGovney, Civil Government in the Philippines, and Prescott F. Jernegan, The Philippine Citizen,
v




vi


PREFACE


are either out of date or were intended for grammar
school use. The classes in the University of tie Philippines and other schools have been handicapped by the
lack of an available text on Philippine government and
its allied subjects. The Administrative Code just enacted
by the Philippine Legislature requires a general introduction if it is to serve the public fairly. I desire also to
set an example for others, especially the younger members of my faculty, by encouraging them to prepare texts,
especially adapted to local needs, instead of forcing students and lawyers to struggle through Spanish commentaries and American text-books, most of which are inapplicable. I feel, finally, that I can claim the privilege
to write on this subject, because of having lived Philippine government in a varied experience with governmental' questions, because of having taught public law for
six years, and because of having made a conscientious,
and it is to be hoped, a thorough, study of the sources.
The constant aim has been to preserve a neutral judicial
attitude. If there has been any preconceived impression,
it has been to discard a strictly American view, which inevitably leads to needless American glorification, and to
deal sympathetically with Philippine institutions. In such
an attempt possibly the foreign observer has the advantage over the native, in that he has a larger perspective.
Just as it has taken foreigners such as De Tocqueville,
Von Hoist, Bryce. and Ostrogorski to analyze American
institutions impartially, so do we find writers such as
Morga (a Spaniard), Jagor (a German), Blumentritt
(an Austrian), Foreman (an Englishman), and Le Roy
(an American), best known and most authoritative of
the writers who have dealt with Philippine questions. My
own point of departure has been to assume that "goodness" is not racial, but that if you search long enough you
can always find the dominant altruistic idea of any people. So I feel that the two principal races which have




PREFACE


vii


governed the Philippines-the Spanish and the American-are to be praised rather tlan condemned, and that
the Filipino with whom they have joined, is possessed of
many qualities which make for good citizenship.
Not without regret, is Dr. Johnson's statement in the
preface to his dictionary here true, which it will be remembered he said "would in time be ended though not
completed." The original intention was to include three
more titles than now appear, namely, Title III Structural,
Title IV Functional, and Title V Critical, but notwithstanding the material for these portions is collected, the
transitory stage of the government made this plan inadvisable. Even if the original intention had been fulfilled,
a perusal of such a work as the Cyclopedia of American
Government \will show the vast number of topics which
could not be covered in a book of this kind, while even
the subjects which are dealt with lead one into so many
fields, that mistakes of facts or judgment will probably
be found.  Indeed, on Pre-Spanish Government little
accurate data is available; on the Spanish Administration,
while sources are available, I have preferred to rely on the
best secondary authorities rather than to impose my own
judgment; on the Revolutionary Government the sources
are just beginning to come to light; on the recent American portions I am more at home. Nevertheless, this is not
apology, for in order to substantiate my statements, I
have everywhere backed them up with authorities, even at
the expense of a loss of style. In this connection I have
preferred to cite the Acts of the Philippine Commission
and Legislature rather than the new Administrative Code,
because the decisions are builded on the Acts, and because
the Code is not yet well known. But if kind friends will
call my attention to additional matter, or will offer suggestions in order that a second edition may be more
nearly accurate and complete, it will be sincerely appreciated.




viii                 PREFACE
To name all who have rendered me service would make
a long list. Yet special mention must be made of Mr.
Justice Trent, Mr. Teodoro M. Kalaw, Judge Goldsborough, Professor Craig, and Professor Bocobo, who
have read the copy and made valuable suggestions. Dr.
James A. Robertson, the eminent Filipinaran scholar, has
kindly placed at my disposal, manuscripts otherwise unattainable. It is not without some pride that I also mention that those portions of which I was most in doubt have
met with the approval of high authorities, such as Chief
Justice Arellano. Two of my associates, Messrs. Hilado
and Espiritu, have performed the laborious task of checking the citations, the best proof that can be offered of their
substantial accuracy.
George A. Malcolm.
Manila, Philippine Islands,
September 1, 1916.




SYNOPTICAL TABLE OF
CONTENTS.
PART I.-DEVELOPMENT.
CHAPTER 1.
INTRODUCTION.
1. Analysis
Philippine Islands.
2. Discovery.
3. Name.
4. General description.
5. People.
6. Periods of history.
7. Boundaries and limits.
Government.
8. State defined.
9. Government defined.
10. Nation defined.
11. Administration defined.
12. Terms distinguished.
13. Necessity of government.
14. Forms of government.
15. The government of the United States.
16. Further classifications.
17. Functions of government.
18. Purpose of government.
19. Tests of a good government.
20. Success or failure of government.
21. Why government studied.
CHAPTER 2.
PRE-SPANISH GOVERNMENT.
~ 22. General conditions.
23. Morga's description of the native government
ix




x


TABLE OF CONTENTS


~ 24. Form of government.
25. The barangay.
26. Inter-group relations.
27. Social classes.
28. Legislation.
29. Contents of laws.
30. Judicial procedure.
31. Defects of organization.
32. Degree of civilization.
CHAPTER 3.
THE SPANISH ADMINISTRATION.
~ 33. Conquest.
34. Colonial policy.
35. Relations with Spain.
36. Laws extended.
37. The governor-general.
38. Central advisory bodies.
39. Central administrative agencies.
-40. Provincial administration.,41. Municipal administration.
42. The judiciary.
43. Ecclesiastical administration.
44. Public finances.
45. Commerce.
46. Education.
47. Public order.
48. Filipino participation.
49. Judgment.
CHAPTER 4.
THE REVOLUTIONARY GOVERNMENT.
~ 50. Historical setting.
51. Causes of revolutions against Spain.
52. Desire for independence.
53. Rise of Philippine nationality.
54. Causes of revolution against the United States.
55. The dictatorial government.




TABLE OF CONTENTS


xi


56. Course of events under the revolutionary government.
57. Parties.
58. The dictator and president.
59. Cabinets.
60. Foreign delegates.
61. The Revolutionary Congress.
62. The Malolos Constitution.
63. Governmental activities.
64. Class of government.
65. Character of government.
CHAPTER 5.
GOVERNMENTAL STEPS UNDER THE AMERICAN
ADMINISTRATION.
First Step-Acquisition.
~ 66. The treaty of Paris.
67. Reasons for retention.
68. Title to the Philippines.
Second Step-Presidential Government Instituted.
69. Military rule.
Third Step-inrestigation and Conciliation.
70. The first Philippine commission.
Fourth Step-Filipino Co-operation.
71. The Federal party.
Fifth Step-Quasi-Civil Government Begun.
72. The second Philippine commission.
Sixth Step-Change from Presidential (Military) to
Congressional (Civil) Government.
73. The Spooner amendment.
Seventh Step-Civil Government Established.
74. Civil governor inaugurated.
75. Civil organization completed.
Eighth Step-Extension of Popular Self-Government.
76. Filipino participation.
Ninth Step-Autonomy.
77. The Jones bill.




xii                TABLE OF CONTENTS
Tenth and Last Step —Philippine Independence.
~ 78. The so-called Philippine problem.
Resume.
79. American Philippine policy.
80. Outline of present administration.
PART II.-FUNDAMENTAL.
CHAPTER 6.
THE RELATIONS BETWEEN THE UNITED STATES
AND THE PHILIPPINES.
~ 81. Expansion.
82. The right of the United States to acquire territory.
83. The right of the United States to govern territory.
84. Purpose prior to Spanish-American war.
85. The doctrine of the insular cases.
86. The power of Congress.
87. The right of the United States to admit the Philippine Islands
into the Union as a state, to cede to a foreign power, or
to declare independent.
88. Application to constitutional relation of the Philippines to the
United States.
89. Congressional control.
90. Presidential control.
91. The bureau of insular affairs.
92. Resident commissioners to the United States.
CHAPTER 7.
THE STATUS OF THE PHILIPPINES.
~ 93. Status of other non-contiguous territory of the United States.
94. Whether the Philippines are a foreign country.
95. Whether sovereign or semi-sovereign.
96. Whether a state or territory of the United States.
97. Whether a colony, dependency, or possession.
98. Whether part of the United States in an international sense.
99. The case of United States versus Bull.
100. Whether legally organized.




TABLE OF CONTENTS


xiii


~ 101. Whether Filipinos are aliens, subjects, or citizens.
102. Status stated.
CHAPTER 8.
ORGANIC LAW.
~ 103. Terminology.
104. Tle United States Constitution in the Philippines.
105. Treaties of the United States.
106. Laws of express extension.
107. Acts of the Philippine Commission.
108. Laws of inherent force.
109. Resultant rules.
110. The Philippine bill.
111. The Philippine autonomy act.
112. Other organic laws.
113. The Philippine Constitution.


CHAPTER 9.
BASIC PRINCIPLES.
~ 114. The Philippine Bill of Rights.
115. Rights withheld.
116. "A government of laws and not of men."
117. Division of powers.
118. Delegation of powers.
119. Irrepealable laws prohibited.
120. Legislative privileges.
121. Rule of the majority.
122. Law of public officers.
123. Interstate comity.
124. Aliens.
125. Citizenship.
126. Immunity of government from suit.
127. Taxation, eminent domain, and police power explained.
128. Taxation.
129. Eminent domain.
130. Police power.
131. Various fundamental privileges and immunities.
132. Rights of accused in criminal prosecutions.




xiv


TABLE OF CONTENTS


~ 133. Suspension of the writ of habeas corpus.
134. Ex post facto laws.
135. Bills of attainder.
136. Excessive bail, excessive fines, and cruel and unusual punishments.
137. Unreasonable searches and seizures; warrants.
138. Treason.
139. Imprisonment for debt.
140. Due process of law and equal protection of the laws.
141. Slavery, involuntary servitude, and peonage.
142. Freedom of speech and press; assembly and petition.
143. Religious liberty.
144. Local government.
145. Suffrage.
146. Education.
147. Subject and title of bills.
148. The enacting clause.
149. Obligation of contracts.
150. Titles of nobility; presents, etc., from foreign states.
151. Law of primogeniture.
152. Polygamy.
153. Appropriations.
154. Indebtedness.
CHAPTER 10.
PHILIPPINE LAW.
~ 155. Law as here used.
156. Sources and development.
Written-Spanish.
157. Force of laws of former sovereignty.
158. Application of rules.
Written-A merican-Filip ino.
159. General orders of the military governors.
160. Acts of the Philippine commission.
161. Acts of the Philippine Legislature.
162. Codification.
163. Joint and concurrent resolutions.
164. Executive orders, proclamations, rules, regulations, and circulars.
165. Rules of court.




TABLE OF CONTENTS


xv


~ 166. The administrative code of the department of Mindanao
and Sulu.
167. Provincial resolutions.
168. Municipal ordinances and resolutions.
So-called Unwritten.
169. IEnglish and American common law.
170. Spanish common law.
171. Customary law.
172. Mohamnedan law.
173. Case law.
174. Legal treatises.
175. Philippine common law.
Construction.
176. Established canons.
A Suggestion.
177. Annotate.
APPENDIX
PHILIPPINE AUTONOMY ACT
pp. 741-763




I
I




PART 1.
DEVELOPMENT.
CHAPTER 1.
INTRODUCTION.
~ 1. Analysis.
Philippine Islands.
2. Discovery.
3. Name.
4. General description.
5. People.
6. Periods of history.
7. Boundaries and limits.
Government.
8. State defined.
9. Government defined.
10. Nation defined.
11. Administration defined.
12. Terms distinguished.
13. Necessity of government.
14. Forms of government.
15. The government of the United States.
16. Further classifications.
17. Functions of government.
18. Purpose of government.
19. Tests of a good government.
20. Success or failure of government.
21. Why government studied.
~ 1. Analysis.-The subject to be considered is "The
Government of the Philippine Islands," short form "Philippine Government." The Administrative Code of the
Philippines legislatively describes "The Government of
the Philippine Islands" as "a term which refers to the
P. I. Govt.-l.




2


PHILIPPINE GOVERNMENT


corporate governmental entity through which the functions of government are exercised throughout the Philippine Islands, including... the various arms through
which political authority is made effective in said Islands,
whether pertaining to the central government or to the
provincial or municipal branches or other form of local
government." (sec. 2.) It naturally divides into two components: "Government" and "Philippine Islands."     Reversing the order for purposes of clearness-What in
large strokes does the phrase "Philippine Islands" portray? What is meant by "Government?"
Philippine Islands.
~ 2. Discovery.-What we know as the Philippine
Islands was first brought to the knowledge of Europe,
as an incident in the first circumnavigation of the globe
by the Portuguese, Ferdinand Magellan, in the employ of
Spain.1  This so-called discovery of the Philippines was
the accidental result first of the search for the Spice
Islands and secondly of the Papal Bull of Demarcation of
1493 and the treaty of Tordesillas, the year following.2
Magellan arrived about the middle of March, 1521. Lonobefore this, however (at least some seven hundred years
previous) regular trade existed between the Philippines
and China and several of the islands were well known to
the Chinese. The islands were also in communication
with Japan, Cambodia, Siam, the Molucas, Formosa, and
the Malay Archipelago.'
1 Described in Bourne, Spain in America, Ch. IX; and in F. H. H.
Guillemard, Life of Ferdinand Magellan and the first Circumnavigation of the Globe, 1891-Perhaps the best modern account. Magellan
is the Anglicized form of the name; Portuguese, Ferfiao de Maglhaes; Spanish, Fernando de Magallanes.
2 Quoted in Vol. I, Blair and Robertson, The Philippine Islands,
pp. 97, 115.
s See Jagor, Travels in the Philippines, Eng. Ed. London, 1875, p.




INTRODUCTION


3


~ 3. Name.-The Islands have had various names.4
First named the "Islands of St. Lazarus" by Magellan,'
they were later christened "Felipinas" by one of the later
Spanish voyagers, Ruy Lopez de Villalobos,' in honor
"of our fortunate Prince"-Prince of Austria, later King
Philip II. This was soon used in the ordinary way, as by
Urdaneta and Legaspi in 1567, "las islas Filipinas"-the
Philippine Islands.   Morga, writing in 1609, stated that
"they are properly called 'Felipinas' " '-Philippines.
~ 4. General description.9-The Philippine Islands,
situated off the coast of Asia, form     the most northern
part of the eastern end of the great archipelago, known as
the East Indies.1~ Subject to possible correction, accord12; Craig, A Thousand Years of Philippine History before the Coming of the Spaniards; Chau Ju-Kua, Chinese writer, Rockhill-Hirth
translation, 1912; Parker, The Early Bisayans.
4 There is authority for the statement that prior to the Spanish discovery, the islands were known as "Ma-i." Chau Ju-Kua, Chinese
writer; Craig, A Thousand Years of Philippine History before the
Coming of the Spaniards. In Spain they were referred to as the
Western Islands and as the Islas del Poniente; in Portugal as the
Islas del Oricnte and the Eastern Islands; and there were various
other names.
6 Pigafetta, The First Voyage Round the World by Magellan, p. 74.
Relacion del Viaje que hizo desde la Nueva Espanaa las Islas del
Poniente Ruy Lopcr de Villalobos, written by Garcia Descalantc
Alvarado. Coleccion de Docs. Ined. del Archivo de Indias v. p. 127.
8 Morga, Sucesos de las Islas Filipinas, 1609, Ch. VIII, Blair and
Robertson, Vol. XVI, pp. 69 et seq. See Bourne's Historical Introduction to Blair and Robertson, The Philippine Islands, Vol. I, pp.
28-31.
9 This section was very kindly checked by the Director of Coast
Surveys.
10 Census of the Philippine Islands, 1903, Vol. I, p. 49; Gazetteer of
the Philippine Islands, p. 1; Elisee Reclus, The Earth and Its Inhabitants (Oceanica), 1892 Ed., by Keane, Ch. IV. More exactly stated,
the Philippine Archipelago extends from 4~ 35' to 21~ 10' north latitude and lies between the meridians of 116' 00' and 127~ 00' east
longitude




4


PHILIPPINE GOVERNMENT


ing to the United States Coast and Geodetic Survey the
number of islands in the group is 3,141,11 with a land area
of 11$,026 square miles. By the census of 1903 the population was put at 7,635,426, but is now undoubtedly well
over 8,000,000. Manila, the capital and metropolis, has a
population of almost 300,000.
The Philippines are principally of igneous formation
with some sedimentary rocks and extensive coral
growths.12   According to Alfred Russel Wallace 1 "the
11 Census, Vol. I, pp. 56, 57.-"1473 (islands) are so far as known
without names." "1095 are large and fertile enough to be inhabited."
Worcester, The Philippines, Past and Present, Vol. II, p. 792. The
two largest are Luzon and Mindanao, with areas of 40,969 and 36,292
square miles,.respectively.
12 "The Indians have a tradition that the earth was borne on the
shoulders of a giant, who, getting tired of his heavy burden, tumbled
it into the ocean, leaving nothing above the waters but the mountains, which became islands for the salvation of the human race."
Bowring, A Visit to the Philippine Islands, pp. 71, 72. In the work
of Dr. N. M. Saleeby entitled the "Origin of the Malayan Filipinos"
it is stated: "The traditions of Tapul state that this island was originally a boat around which dirt from the surrounding waters accumulated and formed land. No people were living in the Sulu Archipelago at that time and no other island had yet been formed. A large
bird alighted on this island and laid an egg, out of which came the
first man. A Chinese raja happened to stop at Tapul and anchored
his boat at the southern extremity of the island. In the night the
dewas stole his daughter and hid her inside a stalk of bamboo. The
man who was born out of the egg on the northern side of the island
had grown in the mean time so lonesome that he clung to the feet of
the mother bird, when she visited him later, and wanted to accompany her. This she did not allow, but putting a bolo in his hand, led
him to a stalk of bamboo on the southern side of the island, which
appeared larger than usual, and directed him to cut it. This he did.
and to his surprise a girl was inside the bamboo, whom he married
and lived with on that solitary island." (p. i.) See also Loarca,
Relacion de las Islas Filipinas, 1582, Ch. VII, Blair and Robertson, Vol. V, pp. 121, et seq. for various other traditional accounts of
the islands creation.
1s Malay Archipelago, 10th Ed. 1890, Ch. I.




INTRODUCTION


5


Philippine Islands agree in many respects with Asia and
the other islands" (of the Malay Archipelago), and were
once part of the continent of Asia.
The prevailing physical features are heavily forested
mountain ranges, with alternating valleys or plains. The
forests are of wide extent and embrace a great variety of
woods, many of them highly valuable.1 The flora is rich
and varied. There are but three rivers attaining a length
of two hundred miles, namely, the Cagayan, of Luzon,
and the Mindanao and Agusan, of Mindanao. The Pasig,
one of the shortest rivers in the country, carries the greatest commerce.15
The Philippine Islands are fundamentally agricultural.
Manufacturing is yet in its infancy. Mineral deposits
have been found and are being worked. Fishing for
domestic consumption is a favorite pursuit. The principal
vegetable products are abaca (hemp), copra (dried meat
of the cocoanut), tobacco, sugar, and rice.16
~ 5. People. —The people of the Philippines are today made up of three general racial divisions: the Negritos, the Malays, and the foreign element of Mongolians
and   Caucasians.   The aboriginal inhabitants of the
islands are generally considered to be the Negritos ("little
negroes"), a race of pigmy blacks, of a primitive nature
and racially distinct.17 With the exception of the small
remnants of tlese Negritos,18 living in the more isolated
14 Census, Vol. I, p. 75.
15 Forbes-Lindsay, America's Insular Possessions, Vol. II, p. 20.
16 Census, Vol. IV, pp. 11 et seq.; Worcester, The Philippines Past
and Present, Ch. XXIII; Forbes-Lindsay, id., p. 65.
17H. Otley Beyer, The Aborigines, in the Cablenews-American
Yearly Review Number, 1911, p. 97. "Negritos" also known as
Aetas, Agtas, or Itas. See Romualdez, A Rough Survey of the PreHistoric Legislation of the Philippines, I Philippine Law Journal,
Nov., 1914, p. 153.
18 Estimated at 23,511 by the census of 1903.




6


PHILIPPINE GOVERNMENT


mountain regions, and of a few thousand Chinese and
other foreigners, the stock of the Philippines consists of
Malays 19 of the same general origin-successive waves
of immigration from the south. These are "the persistent, strongly-marked Malay type" alike in physical features. They differ in dress, customs, and languages (but
all closely related one to the other). The sharpest division of the Malayan element is between the "Filipinos," 20
in the restricted sense, and the "Moros." 21    The former
are mostly Christians while the latter are Mohammedans.
The Spaniard, Chinese, and lately the American are the
principal of thq numerous foreign strains introduced into
the Philippines. The first two have been, and the latter
probably will be, largely absorbed in the native blood.22
19 "We are not yet wise enough to say just who or what the Malay
is.... Whether the Malay is only a more divergent strain of
the Mongolian family, differentiated by centuries of existence on the
shores and in the islands of the great ocean, or represents
again a primitive blend of Mongolian and Caucasian (in
some, at least, of his    subdivisions)  in the  remote  days
of  early  human  life  on  the  greatest of   continents,  are
broader questions underlying our general 'Oriental problem' of
to-day, but a solution of which would be as yet mere hazard." Le
Roy, Philippine Life in Town and Country, 1905, Ch. II generally
and pp. 16, 19, 20, 35. The number of Malays, according to the
census of 1903, was 7,539,632 out of a total population of 7,635,426.
20 "They are from the same Malayan stock as the Moro, but owing
to differences of religion, environment, manner of life and political
condition, have developed diversified physical and mental characteristics. They are the representative people of the Archipelago, and to
them the name 'Filipino' is applied in a distinctive sense." ForbesLindsay, America's Insular Possessions, Vol. II, p. 88.
21 "The word Moro, or Moor, in its original signification simply
meant Muhammadan. It is not an ethnologic term, but is generally
used at present as a comprehensive designation for the several Malayan tribes of the southern islands, who adhere to Islam." ForbesLindsay, America's Insular Possessions, Vol. II, p. 104. The Moros,
according to the census of 1903, number 277,547., "During the last quarter of the nineteenth century the European




INTRODUCTION


7


The conclusion therefore is that with a few exceptions,
the people of the Philippines "are one racially" 2 and that
the "racial stock of the Philippines is quite homogenous." 2
~ 6. Periods of history.-The history of the Philippines naturally divides itself into three great formative
periods: the pre-Spanish; the era of Spanish rule, from
the discovery of the archipelago by Magellan, March,
1521, to Admiral Dewey's victory over the Spanish
squadron in Manila Bay, May 1, 1898; and the American
period.26 Overlapping both the Spanish and American
administrations in point of time is a fourth division, the
Spaniards, apart from (the) functionaries, constituted scarcely a
thousand of the population; and the native Spaniards, or creoles,
were about three in ten thousand (.03 per cent). Their influence
upon the native strain was but slight; of Spanish mestizos (mestizos
privilegiados) there were less than two per cent. Plainly the case
is one quite divergent from that of America. If the Chinese be
reckoned in at two and a half per cent. (Foreman, p. 118, estimates
the total number of Chinese in the islands just before the last insurrection against Spain (1896) as 100,000) and the Chinese mestizos
(mestizos de sangley) at two per cent., the essential predominance of
the native Malay stock is but accentuated; Chinese and Spanish
mestizos together constitute 3~2 per cent., but the former are more
numerous (Blumentritt, pp. 32, 35); the whites, at least, have been
but transitory in the population." Keller, Colonization, p. 346.
23 See article by Dr. Merton L. Miller, Chief Ethnologist, Bureau
of Science, entitled "The People of the Philippines," in CablenewsAmerican, Yearly Review Number, 1911, pp. 90, 91; David P. Barrows, Census of the Philippine Islands, 1903, Vol. I, p. 411. "The
Indians whom the Spaniards found here were of average stature,
olive color, or the color of boiled quinces, large eyes, flat noses, and
straight hair.... They were distinguished by different names,
but their features and customs prove that the origin of all these people is one and the same, and that they did not compose different
races." Joaquin Martinez de Zfifiiga, 0. S. A., Historia, 1803, pp.
19-38, XLIII, Blair and Robertson, pp. 116, 117.
24 Le Roy, Philippine Life in Town and Country, p. 16.
6 Wright, A Handbook of the Philippines, p. 135.




8


PHILIPPINE GOVERNMENT


Philippine Revolution, liable in the future to be carried
forward into a new epoch.    The first was therefore
strictly Filipino; the second, Spanish-Filipino; the third,
American-Filipino; and the last, again, Filipino. It is
noteworthy that the Philippines have thus been touched
by three civilizations-the Aboriginal and Oriental; the
Latin and European; and the Anglo-Saxon and distinctly
American. One has been that of the patriarchal, the second that of the monarchical, and the last that of the democratic form of government.
~ 7. Boundaries and limits.-The boundaries of
the Philippine archipelago are those set forth in article
III of the Treaty of Paris between the United States and
Spain, of December 10, 1898. In addition to the lands
there delimited, the United States subsequently acquired
from Spain the little group of islands known as Cagayan
Sulu and Sibutu, lying off the north coast of Borneo.
The jurisdictional limits26 of the Philippine Islands
generally include all of the land and water within its geographical boundaries including all rivers, lakes, bays,
gulfs, straits, coves, inlets, creeks, roadsteads, and ports
lying wholly within them. It further extends three geographical miles from the shore of the islands of the
Philippines, starting at low water mark. It further includes those bays, gulfs, adjacent parts of the sea or recesses in the coast line whose width at their entrance is
not more than twelve miles measured in a straight line
from headland to headland. It further includes all straits
only or less than six miles wide as wholly within the territory of the Philippines, while for those having more than
that width, the space in the center outside of the marine
league limits is considered as open sea. It further extends for customs purposes at least four leagues from the


26 See Op. Atty. Gen. P. I., Jan. 18, 1912, citing the best and latest
authorities.




INTRODUCTION


9


coast. It further can be said that the Philippine Islands
exercises in matters of trade for the protection of her
marine revenue and in matters of health for the protection of the lives of her people a permissive jurisdiction,
the extent of which does not appear to be limited within
any certain marked boundaries further than that it can
not be exercised within the jurisdictional waters of any
other state, and that it can only be exercised over her own
vessels and over such foreign vessels bound to one of the
ports of the Philippines as are approaching but not yet
within the territorial maritime belt.
Government.
~ 8. State defined.-In modern political science, there
is understood by "state," in its widest sense, an independent society, acknowledging no superior. The United
States Supreme Court in an early case defined "state" as
"a complete body of free persons united together for the
common benefit, to enjoy peaceably what is their own and
to do justice to others." 27 A more comprehensive definition containing the essential constituent elements is that a
state is "a community of persons more or less numerous,
permanently occupying a definite portion of territory,
independent of external control and possessing an organized government to which the great body of inhabitants
render habitual obedience." 28
27 Chisholm v. Ga. (1793), 2 Dall. (U. S.), 455, 1 L. Ed. 456.
28 See Garner, Introduction to Political Science, pp. 38-41, Burgess, Political Science and Constitutional Law, Vol. I, Part I, Book
II, Ch. 1, Holland's Jurisprudence, 11th Ed., pp. 46-48, quoting classical definitions, and I Moore, International Law Digest, sec. 3, quoting
numerous definitions. Cooley, Constitutional Law, p. 20, classifies a
state as "either sovereign or dependent. It is sovereign when there
resides within itself a supreme and absolute power, acknowledging
no superior, and it is dependent when in any degree or particiulr its
authority is limited by an acknowledged power elsewhere." (Citing




10


PHILIPPINE GOVERNMENT


~ 9. Government       defined.-The     word    "government" is derived from the Latin gubernaculum, a rudder,
gubernare, to steer, direct, control. It has been variously
described in other figures of speech as "the ligament that
holds the political society together;" 29 "the machinery or
expedient for expressing the will of the sovereign
power;" 80 "mere contrivances." 81 It is an essential mark
of the state-the collective name for the agency, magistracy, or organization, through which the will of the
state is formulated, expressed, and realized."2 According to President Wilson: "Government, in its last analysis, is organized force. Not necessarily or invariably organized armed force, but the will of a few men, of many
men, or of a community prepared by organization to realize its own purposes with reference to the common affairs
of the community." 88 Again the same author (p. 576)
states that "government is merely the executive organ of
society, the organ through which its habit acts, through
which its will becomes operative, through which it adapts
itself to its environment and works out for itself a more
effective life." A definition of "government" which has
been quoted with approval by the Supreme Court of the
Philippines, and which therefore has for us especial
weight is "that institution or aggregate of institutions by
Vattel, b. 1, Ch. 1, par. 2; Halleck, Int. Law, 65.) And Holland's
Jurisprudence, 11th Ed., p. 50, as Simple and Not Simple. For
further classification, see Moore, id., secs. 5-14.
29Thomas z,. Taylor, 42 Miss. (1869), 651, 706, 2 Am. Rep., 625
(citing Vattel 59).
80 Cherokee Nation v. Southern Kan. R. Co. (1888), 33 Fed., 900.
906.
81 Language of Professor Seeley.
82Garner, Introduction to Political Science, pp. 79, 43, 44, citing
Schulze, "Deutsches Staatrecht," Vol. I, p. 17; Hauriou, "Droit administratiff," p. 7; Von Mohl, "Encyklopadie," p. 72; Jellinek, "Recht
des mod. Staates," pp. 152-155; Duguit, "Droit constitutionnel," p. 19.
s8 Wilson, The State, p. 572.




INTRODUCTION


11


which an independent society makes and carries out those
rules of action which are necessary to enable men to live
in a social state, or which are imposed upon the people
forming that society by those who possess the power or
authority of prescribing them. Government is the aggregate of authorities which rule a society." "
~ 10. Nation defined.-"Nation," a word with a
definite and well understood meaning in the English
language, signifies legally a people distinct from others."
Writers on political science describe a "nation" as consisting of men of one blood, with such accretions from
alien races as, resulting from common affinities, are destined to be permanent; occupying a determinate territory,
within whose limits it maintains its own forms of social
organization; possessing the same language, laws, religion, and civilization, the same political principles and
traditions, the same general interests, attachments, and
antipathies; in short, a people bound together, by common attractions and repulsions, into a living organism,
possessed of a common pulse, a common intelligence and
aspirations, and destined apparently to have a common
history and a common fate." The French publicist,
Pradier-Podre says that "Affinity of race, community of
language. of habits, of customs and religion, are the elements which constitute the nation." 37 As undoubtedly
the people of nearly every important state would fail to
meet the tests of such a perfect and abstract definition, a
more practical conception of a nation would be-a group
of men who have become amalgamated into essential,
ethnic unity through long association. "And yet, when
34 U. S. v. Dorr (1903), 2 Phil., 332, 339, cited and followed in 1
Corpus Juris., p. 1239, note 72; Bouvier's Law Dictionary, 891.
35 Worcester v. Georgia (1832), 6 Pet. 515, 557-561, 8 L. Ed. 483.
86Jameson, Constitutional Conventions, 4th Ed., p. 32; Garner,
Introduction to Political Science, p. 45.
37 "Traite de Droit int. pub.," Vol. I, p. 126.




12


PHILIPPINE GOVERNMENT


one attempts to define 'a nation,' one finds the definition
impossible. Language, race, geographical area, past history, manners and customs, origins, religions, ideals, all
enter into its realization. But ultimately one is obliged
to fall back upon the assertion that a nation exists where
its component atoms believe it to be a nation; where they
are willing to live for and to die for a mystical entity
whose life includes the lives of all the individuals, but
whose life transcends the lives of those individuals." s8
But every combination of men who govern themselves independently of all others will not be considered a nation.
The body thus formed must respect other nations in general, and each of their members in particular. Such a society has her affairs and her interests; she deliberates and
takes resolutions in common,-thus becoming a moral
person, who possesses an understanding and will peculiar
to herself and is susceptible of obligations and rights.39
Later, it will be interesting to determine whether tested
by these definitions the inhabitants of the Philippines constitute a "nation" or a "people" or have potentialities
therefor.
~ 11. Administration defined.-In a definition followed by our Supreme Court it was said: "By 'adnministration,' again, we understand in modern times, and especially in more or less free countries, the aggregate of
those persons in whose hands the reins of government are
for the time being (the chief ministers or heads of departments)." ~ Another meaning is the work which
88 The Nation (London), June 26, 1915. See Walter Lippman, The
Stakes of Diplomacy.
89 Vattel, Prelim., secs. 1, 2; The Cherokee Nation v. The State of
Georgia (1831), 5 Pet. (U. S.) 52, 8 L. Ed. 43.
40 U. S. v. Dorr (1903), 2 Phil. 332, cited and followed in 1 Corpus
Juris., p. 1239, note 72; Bouvier's Law Dictionary, 891.




INTRODUCTION


13


these persons perform."    The term  is an indicative of
both organization and function.
~ 12. Terms distinguished.-The terms here defined are not always used in their strictness.  Thus the
government of a state being its most prominent feature,
whicl is most readily perceived, "government" has frequently been spoken of when "state" was meant; "state"
again has been confused with "nation;" and "governnient" has been used as synonymous with "administration." '  Yet there are marked differences between these
terms.
"The distinction between the government and the state
itself is important and should be observed," says the
United States Supreme Court in a leading case.' "In
common speech and common apprehension they are
usually regarded as identical.... The state itself is
an ideal person, intangible, invisible, immutable. The
government is an agent, and within the sphere of the
agency, a perfect representative." According to an apt
illustration the government is no more the state itself
than the brain of an animal is itself the animal, or the
board of directors of a corporation is itself the corporation."
The term "state" is also often employed as importing
the same thing as "nation." There is, however, no necessary connection between the two. Primarily the state is
a legal or political concept, while the nation is a racial or
ethnical concept-nearly akin to "people."      A  single
41 Frank J. Goodnow, I Cyclopedia of American Government, pp.
8-10. See also Holland's Jurisprudence, 11th Ed. p. 369, and the
Philippine Administratize Code.
4 See Bouvier's Law Dictionary, p. 891; U. S. v. Dorr (1903), 2
Phil. 332, 339; Cooley's Constitutional Law, p. 20.
8 Poindexter v. Greenhow (1884), 114 U. S. 285, 29 L. Ed. 185.
4 Garner, Introduction to Political Science, p. 43.
5 See Garner, Introduction to Political Science, p. 45; Texas v.
White (1869), 7 Wall. 700, 720, 19 L. Ed. 227, 236.




14


PHILIPPINE GOVERNMENT


state may embrace several different nations or peoples;
a single nation will sometimes be so divided politically as
to constitute several states.4
Naturally "government" the agent of the state could
not be identical with the "nation"-the people ruled by
this agent for this superior principal.    That "government" is not "administration" is also plain when it is remembered that "administration"-literally "to assist in"
is but one of the functions of "government." 47
The state then is neither the government, the nation,
the administration, nor, indeed the territory over which
its authority extends. The state is a political unity. The
one characteristic that is essential to the state, and serves
to distinguish it in toto genere from all other human associations, is its possession of political sovereignty.48
The government finally is not the state, the nation, or
the administration. It is the instrumentality of the state.
The different manifestations of this instrumentality we
are to develop, analyze, describe, and criticize.
~ 13. Necessity of government.-"No society can
exist a week, no, not even an hour, without a government." o   This is so because from families and groups of
families have evolved societies, mutually dependent, and
requiring authority, if anarchy is not to exist.   Man is
essentially an appropriating, producing, and exchanging
being. Man's nature thus requires government. What8 See Cooley's Constitutional Law, p. 20. But some claim that the
only perfect and legitimate state exists where the state and one nation
are coextensive. See Holland's Jurisprudence, 11th Ed. p. 46.
47See Goodnow, Principles of the Administrative Law of the
United States, Ch. I; and U. S. v. Dorr (1903), 2 Phil. 332, where
the Supreme Court held that the term "government" as employed in
Act 292 of the Philippine Commission is used in the abstract sense of
the existing political system as distinguished from the concrete organism of the government.
48 Willoughby, The American Constitutional System, pp. 3, 4.
9s Guizot, History of Civilization, Vol. I, p. 108.




INTRODUCTION


15


ever the form of government, the fundamental idea however rudely conceived, is always the protection of society
and its members, security of property and person, the administration of justice therefor, and the united efforts of
society to furnish the means or authority to carry out its
objects.60 "Primarily, government exists for the maintenance of social order." '6
~ 14. Forms of government.-The first scientific
division of states, and so of governments, was by Aristotle
who classified them   according to the seat of supreme
power. There were thus three standard forms of government: MIonarchy —the rule of one; Aristocracy-the rule
of the few; and Democracy-the rule of the many."
Aristocratic  government (with     other classes such as
patriarchal-the rule of the family) having almost disappeared, and Monarchical government having been modified by the force of popular will, Democratic government
especially for the Philippines, considering its connection
with the United States and the aspirations of the Filipinos, has most practical interest. Direct democracies being now impracticable, we find representative democracies
-that is republics.    Madison, in the Federalist, after
noticing various misapplications of the term, defines a re)ublic, in substance, as follows: "A republic...  is
a government which derives all its powers, directly, or
60 Bouvier's Law Dictionary, p. 892. "Government is a necessity of
mnan's nature, and not a mere caprice, however wisdom and experience may mould its structure or vary its application. Its perpetuity
springs from its continued necessity, and is therefore an essential
element of its nature. Hence, no people since the formation of the
world have been known to exist without government in some form."
Hood v. Maxwell (1866), 1 W. Va. 219, 242.
1 City of Chicago v. Sturges (1911), 222 U. S. 313, 322-324, 56
L. Ed. 215.
52 Polit. III, 4 and 5; Wilson, The State, p. 577; Burgess, Political
Science and Constitutional Law, Vol. I, Part I, Book II, Ch. III,
Vol. II, Part II, Book III, Ch. I.




16


PHILIPPINE GOVERNMENT


indirectly, from  the great body of the people.    It is administered by persons holding their offices either during
pleasure or for a limited period, or during good behavior.
It is essential to such a government that it be derived
from the great body of the society, not from a small
proportion or favored class. It is sufficient for such a
government that the persons administering it be appointed, either directly or indirectly, by the people; and
that they hold their appointments by either of the tenures
just specified." 53
~ 15. The government of the United States is the
best example of- Republican government. Lord Bryce has
termed it "a Commonwealth of commonwealths, a Republic of republics, a state, which, while one, is nevertheless composed of other states even more essential to
its existence than it is to theirs." "  In other words, the
United States is a federal, presidential republic made up
of states. It is moreover a Democratic republic in whicl
sovereignty resides in the people and is exercised by them
either directly or indirectly. It exemplifies popular gov68 The Federalist, No. 39; also Nos. 10, 14, Id.; Woodburn, The
American Republic, p. 56. This author recognizes several kinds of
republic, as follows: "An Oligarchic Republic, like Venice. This was
a republic only in name; only a handful of nobles exercised their oppressions under an honorable title. A Military Republic, like Rome.
This was organized on a military plan for military purposes, that
the whole power of the State might be used in quick, united action in
conquest or defence. A Federal Republic, like Switzerland or the
United States, made up of minor states, also republics, united for
common purposes. A Centralized or National Republic, like France,
with all powers of government exercised by the Central Government.
The United States is, as we shall see, partly a Federal and partly a
National Republic. A Democratic Republic, like Switzerland or the
United States, in which the sovereign power is derived from and is
exercised, either directly or indirectly, by the great body of the people." pp. 55, 56.
64 Bryce, The American Commonwealth, Rev. Ed. 1914, Vol. I,
p. 15.




INTRODUCTION


17


ernment.   In short, it is a complex, Federal-national.
Democratic republic, not consolidated, but federated, with
local self-government in the states, under the protection,
of a powerful nation."
~ 16. Further   classifications.-There    are  many
other different groupings of political societies and governments.66  Tlree only, as of local interest, it is desired
to notice-"Constitutional" and "Absolute," "Bureaucratic" and "Popular," and "Paternal" and "Individualistic."
A constitutional government is one in which the powers
of sovereignty are defined and limited in accordance with
the principles of a fundamental law called a constitution.
An absolute government, on the other hand, is one in
which no limitations have been imposed upon the sovereign, or in which no formal constitutional guaranties
exist for the protection of the citizen.67
The other classifications arise principally because of the
spirit which pervades the administrative service and the
sphere of its activities. A bureaucratic government is one
which is composed of administrators specially trained
for the public service, who enter the employ of the government only after a regular course of study and exainination, and who serve usually during good behavior
and retire on pensions. "It accumulates experience," says
John Stuart Mill, "acquires well-tried and well-traditional maxims and makes provision for appropriate practical knowledge in those who have the actual conduct of
55 Madison in the Federalist, No. 39; Woolsey, Political Science,
Vol. I, pp. 166-170; Woodburn, The American Republic, pp. 46 et
seq., 93.
66 See Bouvier's Law Dictionary, pp. 892-894; Garner, Introduction to Political Science, pp. 178-204; Holt, Introduction to the Study
of Government, Ch. I, etc.
57 Davis, Elements of International Law, pp. 32, 33, citing standard
authorities.
P. I. Govt.-2.




18


PHILIPPINE GOVERNMENT


affairs...      The disease,..     which afflicts
bureaucratic governments and of which they die is
routine. They perish by the mutability of their maxims
and still more by the universal law that whatever becomes a routine loses its vital principle." 58   Contradistinguished from bureaucratic government is popular government, that is, government by persons drawn at regular intervals from the ranks of the people, who, after a
brief service, return to the private walks of life.       A
paternal government is one whose         functions are not
limited merely to restraining wrongdoing and the protection of private rights, but which goes farther and endeavors to promote by various means the social wellbeing of the people.    An individualistic government is
one whose activities are limited mainly to the simple
police functions of maintaining peace, order, and security
of society and the protection of private rights.69
~ 17. Functions of government.60-Between the
individualistic and socialistic extremes, come the func58Representative Government (Universal Library edition), pp.
109, 110.
59 Definitions those of Garner, pp. 197-200. "Philosophically, there
are two opposed view-points in the conception of the ends of the
state. According to one notion, that of Kant, the state is designed
solely to afford legal protection to its members in an equal degree.
Its purpose is that each may enjoy the greatest possible freedom,
solely through an equal freedom of all others. This is accomplished
by a limitation upon the spheres of activity of all members of the
state. Such a state, limited solely to a protective activity, is called a
Rechtsstaat, in a narrow sense...     A variety of welfare-theories stand opposed to the theory of Rechtsstaat. They have in common, that they do not regard the state as having simply a negative
legal function, or as only making a way for individual activity. According to these theories, the state also has an end to attain by positive action.  This object is perceived as public welfare (salus
publica)." Gareis, Science of Law, p. 223.
60 See Wilson, The State, Ch. XV; Holt, Introduction to the
Study of Government, Chs. XI, XII.




INTRODUCTION


19


tions of government most often existing in actual operation. These can be placed in two groups, constituent and ministrant.  The first are not optional; the
second are optional. The first are the very bonds of
society; tile second are undertaken only by way of
advancing the general interests of society. President
\Wilson enumerates the constituent functions, as follows:
"(1) The keeping of order and providing for the
protection of persons and property from violence and
robbery.
"(2) The fixing of the legal relations between man
and wife and between parents and children.
"(3) The regulation of the holding, transmission,
and interchange of property, and the determination
of its liabilities for debt or for crime.
"(4) The determination of contract rights between
individuals.
"(5) The definition and punishment of crime.
"(6) The administration of justice in civil cases.
"(7) The determination of the political duties, privileges, and relations of citizens.
"(8) Dealings of the state with foreign powers: the
preservation of the state from external danger or encroachment and the advancement of its international
interests."
The ministrant functions are of five general classes:
(1) Public Works; (2) Public Education; (3) Public
Charity; (4) Industrial Regulations; (5) Health and
Safety Regulations.6 The principles determining
61 Dr. Wilson gives a partial list of the Ministrant Functions as
follows:
"(1) The regulation of trade and industry. Under this head
I would include the coinage of money and the establishment of
standard weights and measures, laws against forestalling and en



20


PHILIPPINE GOVERNMENT


whether or not a government shall exercise certain of
these optional functions are: (1) that a government
should do for the public welfare those things which
private capital would not naturally undertake, and
(2) that a government should do those things which
by its very nature it is better equipped to administer
for the public welfare than is any private individual or
group of individuals.
~ 18. Purpose of government.-A principle older
than constitutions, and older than governments is that
"Government is instituted for the protection, security,
and benefit of the people." 62 Practically, although
not ideally stated, government exists to maintain
peace and order, to insure safety from external aggression, and to advance the general welfare within
the state.  In the famous constitution of Massachusetts of 1780, the prototype of many constitutions, it
grossing, the licensing of trades, etc., as well as the great matters
of tariffs, navigation laws, and the like.
"(2) The regulation of labor.
"(3) The maintenance of thoroughfares,-including state
management of railways and that great group of undertakings
which we embrace within the comprehensive term 'Internal Improvements.'
"(4) The maintenance of postal and telegraph systems, which
is very similar to (3).
"(5) The manufacture and distribution of gas, the maintenance
of waterworks, etc.
"(6) Sanitation, including the regulation of trades for sanitary purposes.
"(7) Education.
"(8) Care of the poor and incapable.
"(9) Care and cultivation of forests and like matters, such as
the stocking of rivers with fish.
"(10) Sumptuary laws, such as 'prohibition' laws, for example." p. 614.
62 Sec. 2, art. 1, Constitution of Iowa. See Koehler and Lange
v. Hill (1883), 60 Iowa, 543.




INTRODUCTION


21


was said: "Tlie end of the institution, maintenance,
and adnministration of government, is to secure the existence of the body politic, to protect it, and to furnish
the indiviiduals who compose it with the power of enjoying in safety and tranquillity their natural riglts,
and the blessings of life."  Mr. Clief Justice Taley
has said that "The olject and end of all government
is to promote the happiness and prosperity of the
community by which it is estallished." s    Expanded,
somewhat, in the language of Mr. Justice Story, "The
great problem   in human government has hitherto
been, how to combine ldural)ility with moderation in
powers, energy with elquality of rights, responsilility
with a sense of independence, steadiness in councils
with popular elections, and a lofty spirit of patriotism
with the love of personal aggrandizement; in slort,
how to comline the greatest haplpiness of the whole
with the least practicable restraints so as to insure
permanence in the public institutions, intelligent legislation, and incorruptible private virtue." 64 I'resi(lent Wilson in the last words of his work on tile State sums ul)
the whole matter as follows: "The end of government
is the facilitation of the oljects of society. The rule of
governmental action   is necessary co-operation.   The
method of political develol)ipent is conservative adaptation, shaping old habits into new ones, modifying old
means to accomplish new ends." 65 The wide transfusion
of the idea is shown by the words of Rizal:   "Govern63 Charles River Bridge v. Warren Bridge (1837), 11 Pet. 420, 9 L.
Ed. 773.
4 Story on the Constitution (1840), p. 45.
66 See Wilson, The State, Ch. XVI. Former President Harrison
states that "A government that proceeds from the people, is administered by them, and has for its high and only end the general welfare, ought to be able to command the respect, the allegiance, and the
obedience of its citizens." This Country of Ours, p. XVL




22


PHILIPPINE GOVERNMENT


ments are established for the welfare of the people, and
in order to accomplish this purpose properly they have to
follow the suggestions of the citizens, who are the ones
best qualified to understand their own needs." N
These high authorities all lead to the same conclusion
-that government exists and should continue to exist for
"the good of mankind" 67-for the benefit of the people
governed; that its people may grow in civilization; that
they may be educated and uplifted; that they may be developed materially, mentally, morally, spiritually.68 All
lead to the further corollary that much as good government is to be desired, government itself is not the end but
a means to the end. This doctrine, which was explicitly
taught by Aristotle, has not been better stated than by
Dante:
"And the aim of such rightful commonwealths is
liberty, to wit, that men may live for their own sake. For
citizens are not for the sake of the consuls, nor a nation
for the king; but contrariwise the consuls are for the sake
of the citizens, the king for the sake of the nation. For
as a commonwealth is not subordinate to laws, but laws
to the commonwealth; so men who live according to the
laws are not for the service of the lawgiver, but he for
theirs; which is the philosopher's (Plato's) opinion in
that which he hath left us concerning the present matter.
Hence it is plain also that though a consul or king in regard of means be the lords of others, yet in regard of the
end they are the servants of others, and most of all, the
monarch, who, without doubt, is to be deemed the servant
of all.""
66 Jose Rizal, The Reign of Greed, English translation by Charles
Derbyshire, p. 142.
67 Locke, Two Treatises of Government, sec. 229.
68 President Woodburn of Indiana University in The American
Government, pp. 32, 33.
69 Quoted by Pollock, Introduction to the History of the Science of
Politics, pp. 37, 38.




INTRODUCTION


23


~ 19. Tests of a good government.-Varying elements and conditions must be considered. The government best suited for the German might not be for the
Filipino.  There are nevertheless certain general tests
applicable to all. Alexander Hamilton declared that the
"true test of a good government" lwas its "aptitude and
tendency to produce a good administration." 0   John
Stuart Mill said "the first element of a good government
was the promotion of the virtue and intelligence of the
people." The first question to be considered, he said, was
"how far does the government tend to foster the moral
and intellectual qualities of the citizens?" The government which does this best, he maintains, is likely to be
the best in other respects.71 The main criterion of a good
government, in other words, is the degree to which it
tends to increase "the sum of good qualities" in the governed, collectively and individually, rather than the efficiency of the government itself as an administrative body,
although of course governmental efficiency is also to be
lesired.72
~ 20. Success or failure of government.-Mabini,
the master mind of the Philippine Revolution, gave the
following sound advice on this subject:
"It is true that he who attempts to govern only with
theory must fail, because the science of government is
essentially practical; but it is true also that every practice
contrary to theory, or rather to reason and truth, is properly an abuse, that is to say, a corrupt practice, since it corrupts society. The success of him who governs always results from practice (la practica) adjusted to the natural
and unchangeable order of things and to the special necessities of the locality, which success is obtained by the aid
70 The Federalist, No. 66.
71 See his Representative Government, Ch. 2.
72 Garner, Introduction to Political Science, pp. 235, 236.




24


PHILIPPINE GOVERNMENT


of theoretical knowledge and of experience. It is not,
then, theory, but practice confused by evil passions or
ignorance, which is the origin of all governmental
failures." 78
~ 21. Why government studied.-All of the foregoing description of government, which could be expanded into volumes, shows on its face the reasons why
it is not only advisable but necessary to possess an understandable acquaintance of the political institutions of
one's native land. While as Mabini points out, experience is one prime factor determining the success of government, yet as he also states theoretical knowledge is another requisite. The Philippines are in a fortunate position in this respect, in that, the government is in a formative not a moribund condition. The Plilippine citizen can
thus delve into history, analyze the institutions of all
states, sift the bad and inapplicable from the good and
applicable, and create therefrom a Philippine State. This
transplantation is exactly what Japan has done. It is a
wise policy, because as some one has well said centuries
of time are gained; for example, it is not necessary to
begin with animal transportation and pass through eons
of time to the electrical age, but the latter can be used almost at once.
It is needful therefore that the Philippine citizen should
have an intelligent knowledge of the general principles of
free government. He must understand the present nature
of his own government which touches so many of the big
and little things of his life. He must be in a position to
improve this government through the force of public
opinion, the civilized way.  He must learn respect for
law.  He should insist upon wise reforms so that the
73Le Roy's English Translation of Mabini's "Manifesto," published in XI Am. Hist. Rev., 1906, p. 858. See also Mabini's letter
to General Bell of Aug. 31, 1900.




INTRODUCTION


25


uncivilized way, the right of revolution need not be called
upon. He must pass on to his less fortunate brother the
lessqns he has learnedl. He must be in a position to exercise the right of suffrage, to discuss public questions intelligently, and to perform the duties of public office as a
pul)lic trust. I-e will find in the course of his studies that
the science of government is not easy of comprehension
or application, for as the highest judicial tribunal of the
world has sai(l "The science of government is the most
abstruse of all sciences." 74
It is true that
"Each petty hland
"Can steer a ship becalim'd; hut lie that will
Govern and carry lier to her ends, must know
His tides, his currents, how to shift his sails;
WVhat she will bear in foul, what in fair weathers;
Where her springs are, her leaks, and h]ow to stop 'em;
What strands, what shoals, what rocks do threaten
her."
Ben Jonson: Catiline, Act iii. Sc. 1.
REPRESENTATIVE AUTHIORITIES.
Philippine Islands.
Edward Gaylord Bourne, Historical Introduction to
Blair and Robertson, The Philippine Islands, 1493-1898,
Vol. I.
Charles Hartcourt Ainslee Forbes-Lindsay, America's
Insular Possessions (1906), Vol. II, pp. 17 et seq.
Census of the Philippine Islands (1903).
Elisee  Reclus,  The Earth   and  Its  Inhabitants
(Oceanica) 1892 Ed. by Keane, Ch. IV.
Opinion of the Attorney-General of the Philippines,
January 18, 1912.


7 Anderson v. Dunn (1821) 6 Wheat. 204, 226, 5 L. Ed. 242.




26


PHILIPPINE GOVERNMENT


Governllent.
James Wilford Garner, Introduction to Political
Science (1910), especially Chs. II, III, VI, VII, X.
Woodrow Wilson, The State, Rev. Ed. 1911, especially
Chs. I, XI, XIII, XV, XVI.
John W. Burgess, Political Science and Constitutional
Law (1913), Vol. I, Part I, Books I, II, Vol. II, Part II,
Book III, Chs. 1, 2.
Thomas M. Cooley, Constitutional Law, 3rd Ed.
(1898), pp. 20, 21.
John Stuart Mill, Representative Government (1862).
John Locke, Two Treatises of Government (1690).
Pedro A. Paterno, Gobierno Civil de las Islas Filipinas
(1910), Part I.
Teodoro M. Kalaw, Teorias Constitucionales (1912),
Chs. II, III, IV, IX.
Bouvier's Law Dictionary, Rawles Rev., appropriate
titles.
James Bryce, American Commonwealth, Rev. Ed.
1914.
Cyclopedia of American Government, appropriate titles.
U. S. v. Dorr (1903), 2 Phil. 332, 339.
Poindexter v. Greenhow (1884), 114 U. S. 285, 290,
29 L. Ed. 185, 192.




CHAPTER 2.
PRE-SPANISH GOVERNMENT.
~ 22. General conditions.
23. Morga's description of the native government
24. Form of government.
25. The barangay.
26. Inter-group relations.
27. Social classes.
28. Legislation.
29. Contents of laws.
30. Judicial procedure.
31. Defects of organization.
32. Degree of civilization.
~ 22. General conditions.1-The inhabitants of the
Philippines possessed a culture of their own prior to the
coming of the Spaniards to the islands. Those along the
coasts were the most advanced in civilization. Their material wealth was considerable. The chief occupations
were agriculture, fishing, weaving, some manufacturing,
and trade both interisland and with the mainland, generally in the form of barter. They were expert navigators. They used standard weights and measures. The
year was divided into twelve lunar months. They had
1 Condensed from James A. Robertson, Lecture before the Philippine Academy, Jan. 7, 1914, an article by him in the CablenewsAmerican Yearly Review Number, 1911, p. 22, and an article by him
in 6 Journal of Race Development, Oct., 1915, pp. 156-158; Jagor,
Travels in the Philippines, Eng. Ed., 1875, p. 151; Forbes-Lindsay,
America's Insular Possessions, Vol. II, p. 86; Loarca, Relaci6n de
las Islas Filipinas, 1582, Blair and Robertson, The Philippine
Islands, Vol. V, p. 165; Jose Maria Pavon y Aranguru, Las Antiguas
Leyendas de la Isla de Negros, 1838, recovered by Dr. James A.
Robertson, in course of publication in English.
27




28


PHILIPPINE GOVERNMENT


a peculiar phonetic alphabet,2 wrote upon leaves, and had
a primitive literature.   "The majority of the people are
said to have been able to read and write." 8      Their religion approached the animistic with a vague belief in a supreme deity, but filled with superstition.
~ 23. Morga's description of the native government.-It is necessary to rely chiefly upon the rather
uncertain information given by the Spanish writers. Of
these, Antonio de Morga, a high royal official in the government service for a number of years around about the
year 1600, is admittedly the most relialle chronicler of
the conditions existing in those early (lays.4    In Rizal's
edition of Morga's "Sucesos de las Islas Filipinas" it is
said:
2 "The Tagalogs, Visayans, Pampangans, Pangasinans, Ilocanos,
and probably other tribes, made use of an alphabet, which can properly be called a Filipino national alphabet, inasmuch as with slight
differences it was in universal use at that time (arrival of Spaniards),
and was continued in use... up to ten years ago." Dr. T. H.
Pardo de Tavera, quoted in Wright, A Handbook of the Philippines,
p. 138. Also the Sambals, the Mafigyans, and the Tagbanuas. "There
were eight distinct forms of the ancient Malay alphabet in use in the
Philippines in the pre-Spanish time, not to mention the accidental
differences due to the greater or less ability of the transcribers, and
to the different taste and style of each of them." Norberto Romualdez, The Pre-Spanish Alphabets used by the Filipino peoples, a lecture before the Philippine Academy, November 10, 1914.
"As early as the end of the fifteenth century they (the Moros)
could read and write." Najeeb M. Saleeby, Studies in Moro History,
Law, and Religion, p. 63.
4 Morga's account is much more definite and complete than that of
Legaspi, the first Spanish Governor-General, in his Relation of the
Philippine Islands and of the character and conditions of their inhabitants, 1569, in which he states-"The inhabitants of these islands
are not subjected to any law, king, or lord. Although there are large
towns in some regions, the people do not act in concert or obey any
ruling body; but each man does whatever he pleases, and takes care
only of himself and of his slaves. He who owns most slaves, and the
strongest, can obtain anything he pleases. No law binds relatives,




PRE-SPANISIH GOVERNMENT


29


"There   were no kings or lords throughout these
islands who ruled over them    as in the manner of our
kingdoms and provinces; but in every island, and in each
province of it, many chiefs were recognized by the natives
themselves.  Some were more powerful than others, and
each one has his followers and subjects, by districts and
families; and these obeyed and respected the chief. Some
chiefs had friendship and communication with others,
and at times wars and quarrels.
"These principalities and lordships were inherited in
the male line and by succession of father and son and
their descendants.   If these were lacking, then their
brothers and collateral relatives succeeded.  Their duty
was to rule and govern their subjects and followers, and
to assist them in their interests and necessities. What the
chiefs received from their followers was to be held by
them  in great veneration and respect; and they were
served in their wars and voyages and in their tilling, sowing, fishing, and the building of their houses. To these
duties the natives attended very promptly, whenever
summoned by their chief.      They also paid the chiefs
tribute (which they called buiz), in varying quantities, in
the crops that they gathered. The descendants of such
chiefs, and their relatives, even though they did not inherit
the lordship, were held in the same respect and consideraparents to children, or brother to brother. No person favors another, unless it is for his own interests; on the other hand, if a man,
in some time of need, shelters a relative or a brother in his house,
supports him, and provides him with food for a few days, he will
consider that relative as his slave from that time on, and is served by
him. They recognize neither lord nor rule; and even their slaves are
not under great subjection to their masters and lords, serving them
only under certain conditions, and when and how they please." Vol.
III, Blair and Robertson, p. 54. Dr. Robertson also states that Father
Juan de Plasencia's "method of investigation was along proper lines
and made in a commendable spirit" 6 Journal of Race Development,
Oct., 1915, p. 158.




30


PHILIPPINE GOVERNMENT


tion. Such were all regarded as nobles, and as persons
exempt from the services rendered by the others, or the
plebeians, who were called timaguas (Timawa-Rizal).
The same right of nobility and chieftainship was preserved for the women, just as for the men. When any of
these chiefs was more courageous than others in war and
upon other occasions, such a one enjoyed more followers
and men; and the others were under his leadership, even
if. they were chiefs. These latter retained to themselves
the lordship and particular government of their own following, which is called barangai among them. They had
datos and other special leaders (mandadores) who attended to the interests of the barangay.
"The superiority of these chiefs over those of their
barangai was so great that they held the latter as subjects;
they treated these well or ill, and disposed of their persons, their children, and their possessions, at will, without any resistance, or rendering account to anyone. For
very slight annoyances and for slight occasions, they were
wont to kill and wound them, and to enslave them. It has
happened that the chiefs have made perpetual slaves of
persons who have gone by them, while bathing in the
river, or who have raised their eyes to look at them less
respectfully and for other similar causes.
"There are three conditions of persons among the natives of these islands, and into which their government is
divided: the chiefs, of whom we have already treated; the
tinmaguas, who are equivalent to plebeians; and slaves,
those of both chiefs and timaguas." '
~ 24. Form of government.-The family has ever
been "the primal unit of political society, and the seed bed
of all larger growth of government." It exists under the
absolute sovereignty of the father. In time the group
5 Rizal's Edition of Antonio de Morga, Sucesos de las Islas Filipinas, 1609, quoted in XVI Blair and Robertson, pp. 119-121.




PRE-SPANISI GOVERNMENT


31


broadens into the "house" or "gens" over which a chief
kinsman rules.6 It was at this stage that society stood in
remote Philippine life. The family extended to include
distant relatives and thus constituting a barangay and
even a confederation of barangays, was the unit. The
patriarchal form of government was thus prevalent and
fundamental, but this had developed as was natural into
a near semblance to the aristocratic form, with some
monarchical tendencies. As said by Father Juan Francisco de San Antonio, rewriting with additions the relation of Father Juan de Plasencia: "These Indians were
not so lacking in prudence in the olden time that they did
not have their economic, military and political government, those being the branches derived from the stem of
prudence. Even the political government was not so simple among all of them that they did not have their architectonic rule-not monarchic, for they did not have an
absolute king; nor democratic, for those who governed a
state or village were not many; but an aristocratic one,
for there were many magnates (who are here called either
maguinoos or datos), among whom the entire government was divided." 7
~ 25. The barangay formed the governmental unit.
Tlhe word "barangay," corrupted from "balangay," means
a boat, thus confirming the theory as to the immigration of the Malays to the Philippines.  A group of
people consisting of a family with relatives and slaves
traveling from island to island in a "balangay," in time
the group itself came to be known as a "balangay" or
"barangay." "The term balangay, or boat, still applied
to the villages, recalls the time when these mariners, encamping on the beach, continued to lead much the same
life as when scouring the high seas in their praus. As


6 See Wilson, The State, pp. 5, 6, 13.
7 Cronicas, 1738, XL Blair and Robertson, pp. 347-349.




32


PHILIPPINE GOVERNMENT


was the case with the sampans, or junks, of the more recent Chinese settlers every balangay became the cradle of
a Malay colony." 8
The number of houses in these communities was somelimes even less than thirty, and again as many as one hundred,' while as observed by Salcedo in Ilocos the number
of inhabitants reached as high as seven thousand.~1 A
multitude of these "Balangays" would be found on every
island, with a number of them clustering together for
mutual protection.
These independent clans of "Balangay" were retained
by the Spaniards. They still exist as "barrios" (wards).
~ 26. Inter-group relations were naturally restricted. Extent of jurisdiction depended mainly upon
strength and valor. Such relations would therefore be
of the most primitive nature and would relate to war or
questions of marriage."     However, the barangays must
inevitably in course of time come to have communication
8Elisee Reclus, The Earth and Its Inhabitants (Oceanica), 1892
Ed. by Keane, pp. 254, 255. See further Romualdez, A Rough Survey of the Pre-Historic Legislation of the Philippines, I Philippine
Law Journal, Nov., 1914, p. 157.
9Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair
and Robertson, pp. 173-176. Father San Antonio states that each
"barangay consisted of about one hundred persons, more or less."
Cronicas, 1738, XL Blair and Robertson, pp. 347-349.
10 T. H. Pardo de Tavera, Census, 1903, Vol. I, pp. 324, 325.
11 "The maharlicas could not, after marriage, move from one village to another, or from one barangay to another, without paying a
certain fine in gold, as arranged among them. This fine was larger
or smaller according to the inclination of the different villages, running from one to three taels and a banquet to the entire barangay.
Failure to pay the fine might result in a war between the barangay
which the person left and the one which he entered. This applied
equally to men and women, except that when one married a woman
of another village, the children were afterwards divided equally between the two barangays." Two Relations by Juan de Plasencia,
O. S. F., 1589, VII Blair and Robertson, pp. 173-176, 178, 179.




PRE-SPANISH GOVERNMENT


33


with each other and be joined by ties of kinship and
friendship.  They might help one another in their wars
or unite under a common ruler for this purpose. So must
there have been councils, alliances, and pacts. One chief
might come to dominate others less powerful and thus
have dominion over several barangays.s1
There is consequently evidence that barangays were
grouped together in tiny and loose confederations, including about as much territory as the present towns. Rizal
in his edition of Morga appends this note: "This fundamental agreement of laws, and this general uniformity,
prove that the mutual relations of the islands were widespread, and the bonds of friendship more frequent than
were wars and quarrels. There may have existed a confederation, since we know   from the first Spaniards that
the chief of Manila was commander-in-chief of the Sultan of Borneo.    In addition, documents of the twelfth
century  that exist testify   the same thing.-Rizal." 18
There is also ground to believe that there were "First,"
"Second," and "Third" Chiefs-thus indicating an upward progression of fealty.1
~ 27. Social classes.5 —Society was divided into
the three classes of nobles, freemen, and slaves.
The nobles were called "Datu" (Dato) or "Raga"
1t Plasencia, id., pp. 173-176; Francisco Colin, S. J., Native Races
and their Customs, 1663, XL Blair and Robertson, pp. 82-84.
xs Rizal's edition of Antonio de Morga, Sucesos de las Islas Filipinas, 1609, XVI Blair and Robertson, p. 121.
14 Romualdez, A Rough Survey of the Pre-Historic Legislation of
the Philippines, I Philippine Law Journal, Nov., 1914, p. 152; Robertson, The Evolution of Representation in the Philippine Islands, 6
Journal of Race Development, Oct., 1915, p. 157.
15 See generally Romualdez, A Rough Survey of the Pre-Historic
Legislation of the Philippines, I Philippine Law Journal, Nov., 1914,
pp. 153-157; Francisco Colin, S. J., Native Races and their Customs,
1663, XL Blair and Robertson, pp. 82-87; Two Relations by Juan de
Plasencia, O. S. F., 1589, VII Blair and Robertson, pp. 173-176.
P. I. Govt-3..




34


PHILIPPINE GOVERNMENT


(Raja)-meaning "Chief," "Monarch," etc.16        These
titles were acquired either by inheritance or by individual
valor, wealth, or energy. Diego de Artieda, writing in
1573, said that "The Datos boast of their old lineage." 17
These chiefs had great powers; they exercised despotic
authority; and they were treated with the utmost respect
and reverence. "The subject who committed any offense
against them, or spoke but a word to their wives and children, was severely punished." 18  The chiefs were the
captains in the wars, the law givers, the judges, and had
control over land, fishing, and trade.   In them  were
united all the usual forces of government.
The freemen were called "Timawa" (in Visayan) or
"Maharlika"   (in  Tagalog), meaning     "plebeian"  or
"free." They were the descendants and relatives of the
nobles who did not inherit the rank, together with the
emancipated slaves and their descendants. They paid no
tax or tribute to the chief, but had to accompany him in
war at their own expense.19
The slaves, among the Visayans, were of three classes:
the "Ayuey," the "tumarampuk," and the "tumataban."
Among the Tagalogs, there were two classes: the "Aliping-Namamahay" and the "Aliping-Saguiguilir." These
slaves, and usually their families according to their class,
had to work a varying proportion of time for their masters. The usual sale price was one or two taels of gold
16 For the etymological derivations of the terminology used in this
and other sections, see Romualdez, A Rough Survey of the PreHistoric Legislation of the Philippines, I Philippine Law Journal,
Nov., 1914, pp. 149-180. Various other names were used by the
early Spanish writers to describe these classes.
17 Relation of the Western Islands called Filipinas, III Blair and
Robertson, p. 197.
18 Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair
and Robertson, pp. 173-176.
19 Plasencia, Id.




PRE-SPANISHi GOVERNMENT


35


(six or twelve pesos); the      "Aliping-Namamahay"termed by Father Plasencia "Commoners" —could not be
sold.
~ 28. Legislation.-The early historians agree that
"the natives' laws throughout the islands were made in
the same manner, and they followed the traditions and
customs of their ancestors, without anything being written. Some provinces had different customs than others
in some respects. However, they agreed in most, and in
all the islands generally the same usages were followed." 20  Proof, in the nature of the recent discovery
of the Penal Code of Calantiao, 3rd Chief of Panay, written in 1433, in connection with the fact that there was an
alphabet and letters, shows that in addition to tradition
and custom there existed written laws.3" Laws were made
and promulgated by the chief, after consultation with the
elders.22  They were "observed with so great exactness
that it was not considered possible to break them in any
circumstance." u   Professor Gareis well says that all
"such primitive legislation, sprung from   the necessities
of the moment, and is necessarily unsystematic." "    But
in the opinion of former Secretary of Finance and Justice Araneta, "these primitive laws could very favorably
be compared with those of the Greeks and Romans." u
The usages and laws of the natives continued to be ob20Rizal's edition of Morga, Sucesos de las Islas Filipinas, 1609,
XVI Blair and Robertson, pp. 119-121.
21 See Jose Maria Pavon y Aranguru, Las Antiguas Leyendas de
la Isla de Negros, 1838, recovered by Dr. James A. Robertson.
22According to tradition the laws were supposed to have beene
given by the Goddess Lubluban. Loarca, Relaci6n de las Islas Filipinas, V Blair and Robertson, p. 141.
2 Francisco Colin, S. J., Native Races and their Customs, 1663,
XL Blair and Robertson, p. 84.
24 Gareis, Science of Law (1905), p. 77.
26 Araneta, Penal Legislation of the Philippine Islands, III Philippine Law Review, February, 1914, pp. 175, 178.




36


PHILIPPINE GOVERNMENT


served and respected during the first years of Spanish
sovereignty." Survivals can even be found at the present time.
~ 29. Contents of laws.-The laws covered many
of the subjects which we find in the modern codes. To
indicate only a few of the most striking points in the substantive law. "One was the respect of parents and elders,
carried to so great a degree that not even the name of
one's father could pass the lips, in the same way as the
Hebrews (regarded) the name of God." 27 Even after
reaching manhood and even after marriage the son was
under a strict obligation to obey his father and mother.28
The people were accustomed to adoption.2 Marriage had
reached the stage of mutual consent.~ Marriage ceremonies approaching the religious and including use of
the proverbial rice were more or less elaborate, according to rank. Husband and wife were equal socially and
in control of their property.    Property was acquired
principally by occupation, but also by gift, purchase, and
succession. Thus Father Plasencia states: "The lands
which they inhabited were divided among the whole
barangay, especially the irrigated portion, and thus each
one knew his own. No one belonging to another barangay
2e Araneta, id., citing Plasencia, XVI Blair and Robertson, p. 321.
27Francisco Colin, S. J., Native Races and their Customs, 1663,
XL Blair and Robertson, pp. 84-86.
28 Calder6n, cited by Romualdez in A Rough Survey of the PreHistoric Legislation of the Philippines, I Philippine Law Journal,
Nov., 1914, pp. 163, 164.
N Juan Francisco de San Antonio, O. S. F., Cronicas, 1738, XL
Blair and Robertson, pp. 371, 372.
80 Judge Lobingier, The Primitive Malay Marriage Law, XII,
American Anthropologist, April-June, 1910, p. 250, is of the opinion
that the Malays had only arrived at the second stage of wife purchase, but Judge Romualdez in his article, id., pp. 160-163, has proved
the contrary. See Loarca, V Blair and Robertson, pp. 153-161, for a
general account of marriage.




PRE-SPANISH GOVERNMENT


37


would cultivate them unless after purchase or inheritance.
The lands on the tingues, or mountain-ridges, are not
divided, but owned in common by the barangay. Consequently, at the time of the rice harvest, any individual
of any particular baranzgay, although he may have come
from some other village, if he commences to clear any
land may sow it, and no one can compel him to abandon
it." I As to inheritances, "In regard to heirs, all the legitimate children equally inherited all the property of their
parents. If there were no legitimate children, then the
nearest relatives inherited. If one had two or more children by two wives, all legitimate, each child inherited
what belongs to his mother, both of the wealth of her
time, and of the profits made from it, which could have
belonged to her. As to the dowry, it is inferred that the
child's grandparents received it, and spent it at the time
of the wedding. If there were other children who were
not legitimate, who had been had by a free woman, they
had one-third of the property, and the legitimate children
the other two-thirds.  But in case that there were no
legitimate children, then the illegitimate children of a
free woman were the absolute heirs. Some property was
given to the children of slave women according to the
wishes of the legitimate heirs, and the mother became
free, as has been stated above-as did the children also,
in the manner already explained." 3   Contracts were
strictly fulfilled. The Chinese writer Wang Ta-yuan in
a book of 1349 says: "The natives and the traders having agreed on prices, they let the former carry off the
goods and later on they bring the amount of native products agreed upon. The traders trust them, for they never
31 Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair
and Robertson, pp. 173-176, 178, 179.
2 Juan Francisco de San Antonio, O. S. F., Cr6nicas, 1738, XL
Blair and Robertson, pp. 355-358, 371, 372.




38


PHILIPPINE GOVERNMENT


fail to keep their bargains." 88 In fact, non-performance
of a contract was severely punished.84 Partnerships were
formed and the respective obligations of the partners enforced. Thus, according to Loarca, "When two persons
formed a partnership by putting in an equal share of the
capital, and one of them went away to trade with the
whole capital but was captured by their enemies, the
partner who remained was bound to redeem his partner,
by paying the price of the redemption. The captive was
thus discharged not only from the responsibility for the
capital of his partner but also for the money paid by the
latter for his redemption. But if the partner who went
away to trade, lost the money in gambling or women, he
was compelled to pay the money thus misappropriated and
his liability attached to his children. If the amount was
so big that he was not able to refund it within the time
agreed upon, then he and one-half of his children became
the slaves of his partner, so that if he had two children,
one of them became a slave. If afterwards, the free child
was able to pay his father's debt, all of them were set
free." 85
The penal law was the most extensive. Penalties were
severe. According to the Penal Code of Calantiao, the
penalties were death, incineration, mutilation of the
fingers, slavery, flagellation, being bitten by ants, swimming for a fixed time, and other discretionary penalties.
Father Plasencia writes, "They had laws by which they
condemned to death a man of low birth who insulted the
daughter or wife of a chief; likewise witches, and others
88 Craig's edition of an "Unpublished translation, by Hon. W. W.
Rockhill, of a Chinese book of 1349, by Wang Ta-yuan, Description
of the Barbarians of the Isles (Tao-i-chih-lio)."
s4Jose Maria Pavon y Aranguru, Las Antiguas Leyendas de la
Isla de Negros, 1838, recovered by Dr. James A. Robertson.
85 Relacion de las Islas Filipinas, V Blair and Robertson, pp. 183,
185.




PRE-SPANISII GOVERNMENT


39


of the same class.   They condemned no one to slavery,
unless lie merited the death-penalty. As for the witcles,
they killed them, and their children and accomplices became slaves of the chief, after he had made some recompense to the injured person. All other offenses were punished by fines in gold, which if not paid with promptness,
exposed the culprit to serve, until the payment should be
made, the person aggrieved, to whom the money was to
be pai(d." 6 Wide distinctions in punishment were made
because of rank.87    Yet notwithstanding the seemingly
cruel and illogical penalties, "The scale of penalties and the
manner of their execution stand out in bold relief not only
as against Greek and Roman laws but also as against prior
and contemporaneous Spanish laws, and the proceedings
adopted to determine the author of the theft, in case he
was not known, compare favorably with tle tortures to
which the suspected persons were subjected under the
Fuero Juzgo and the Partidas." 88     Not to mention the
various punishable acts which likewise compare favorably
with similar provisions even now,89 the weakest side of
the penal system related to tolerance of crimes against
chastity.4'
86 Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair
and Robertson, pp. 179, 180. 181.
87 Francisco Colin, S. J., Native Races and their Customs, 1663,
XL Blair and Robertson, pp. 84-86.
88Araneta, Penal Legislation of the Philippine Islands, III Philippine Law Review, Feb., 1914, pp. 175, 179.
89 See Jose Maria Pavon y Aranguru, Las Antiguas Leyendas de la
Isla de Negros, 1838, recovered by Dr. James A. Robertson, and
Romualdez, A Rough Survey of the Pre-Historic Legislation of the
Philippines, I Philippine Law Journal, Nov., 1914, 149-180, for a
minute description of the punishable acts.
40 Thus according to Father San Antonio, O. S. F., Cr6nicas, 1738,
pp. 355-358, "Adultery was not punishable corporally, but the adulterer paid a certain sum to the aggrieved party; and that was sufficient so that the honor of the latter was restored and his anger re



40


PHILIPPINE GOVERNMENT


~ 30. Judicial procedure.-The         chief, assisted   at
times by old men of his barangay or by a neighboring
chief, acted as judge in all cases of litigation between his
subjects.i1 He heard the witnesses and judged the case
according to usage and law. When the litigants belonged to different barangays, or the controversy was between two chiefs and even at other times, arbiters were
chosen, who gave judgment.42
Trials were public.     "Investigations made and sentences passed by the dato must take place in the presence
of those of his barangay." 48 Oaths were administered.
The oath taken by the principales of Manila and Tondo
in promising obedience to the Catholic Kings of Spain in
1571, was as follows:    "May the sun divide us in halves,
the alligators bite us, the women refuse us their favors
and refuse to love us well, if we do not keep our word."
Appeals were recognized.44
moved. They paid no attention to concubinage, rape, and incest, unless the crime were committed by a timawa on a woman of rank.
On the contrary, the committal of such sins openly was very common,
for all of them were very much inclined to this excess; but I cannot
find that they were addicted to the sin against nature in the olden
time." But Father Ord6fiez de Cevallos, Viajes del Mundo, 1614,
p. 232, says: "The women are extremely very chaste, and lewdness is
never seen in them, nor any disloyalty to their master; on the contrary, they are very generally virgins, and those who are married
know not husband but one; and in spite of this, God, in His divine
secrets, multiplies them greatly; and some towns are found to have
two thousand five hundred inhabitants and to have over two thousand boys and girls, and yet none of these children is found to be illegitimate."
41 T. H. Pardo de Tavera, Census of the Philippine Islands, 1903,
Vol. I, pp. 324, 325.
42Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair
and Robertson, pp. 173-176, 178, 179.
48 Plasencia, id.
44Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair
and Robertson, pp. 173-176, 178, 179. Morga states otherwise-"sen



PRE-SPANISH GOVERNMENT


41


The usual procedure is described by Father Colin as
follows:
"For the determination of their suits, both civil and
criminal, there was no other judge than the said chief,
with the assistance of some old men of the same baratgay. With them the suit was determined in the following form: They had the opponents summoned, and endeavored to have them come to an agreement. But if
they would not agree, then an oath was administered to
each one, to the effect that he would abide by what was
deternlined to be done. Then they called for witnesses,
and examined summarily. If the proof was equal (on
both. sides), the difference was split; but, if it were unequal, the sentence was given in favor of the one who conquered. If the one who was defeated resisted, the judge
made himself a party to the cause, and all of them at once
attacked with the armed band the one defeated, and execution to the required amount was levied upon him. The
judge received the larger share of this amount, and some
was paid to the witnesses of the one who won the suit,
while the poor litigant received the least.
"In criminal causes there were wide distinctions made
because of the rank of the murdered and the slain; and if.
the latter were a chief all his kinsmen went to hunt for
the murderer and his relatives, and both sides engaged in
war, until mediators undertook to declare the quantity of
gold due for that murder, in accordance with the appraisals which the old men said ought to be paid according to their custom. One half of that amount belonged
to the chiefs and the other half was divided among the
wife, children, and relatives of the deceased." i
tence was observed and executed without any further objection or
delay." Rizal's edition, Sucesos de las Islas Filipinas, XVI Blair and
Robertson, pp. 119-121.
45 Francisco Colin, S. J., Native Races and their Customs, 1663,
XL Blair and Robertson, pp. 84-86.




42


PHILIPPINE GOVERNMENT


The procedure in cases of theft is given by Father
Colin as follows:
"In a matter of theft, if the crime were proved, but
not the criminal, and more than one person was suspected,
a canonical clearance from guilt had to be made in the following form. First, they obliged each person to put in a
heap a bundle of cloth, leaves, or anything else that they
wished, in which they might discover the article stolen.
If the article stolen was found in the heap, at the end of
this effort, then the suit ceased; if not, one of the three
methods was tried. First, they were placed in the part of
the river where it is deepest, each one with his wooden
spear in his hand. Then at the same time they were all
to be plunged under the water, for all are equal in this, and
he who came out first was regarded as the criminal. Consequently, many let themselves drown for fear of punishment. The second was to place a stone in a vessel of
boiling water, and to order them to take it out. He who
refused to put his hand into the water paid the penalty
for the theft. Thirdly, each one was given a wax candle
of the same wick, and of equal size and weight. The candles were lighted at the same time and he whose candle
first went out was the culprit." 46
~ 31. Defects of organization are not hard to ascertain. "The weakest side of the culture of the early
Filipinos was their political and social organization.
46 Francisco Colin, S. J., Native Races and their Customs, 1663,
XL Blair and Robertson, pp. 84-86. See also Bowring, A Visit to the
Philippines, pp. 123, 124. "Tradition has handed down to us similar
methods, as that of masticating uncooked rice, which is still resorted
to by the boys of Leyte in their games upon those suspected of having
done a reprehensible act. The one who produced the thickest saliva
was considered the guilty one for the reason that persons tormented
with remorse can not usually produce much saliva." Romualdez, A
Rough Survey of the Pre-Historic Legislation of the Philippines, I
Philippine Law Journal, Nov., 1914, p. 178.




PRE-SPANISH GOVERNMENT


43...    Their state did not embrace the whole tribe or
nation; it included simply the community. Outside of the
settlers in one immediate vicinity, all others were enemies
or at most foreigners." (David P. Barrows.) 47    "Their
political and social organization was deficient in cohesion.
Tlere were no well-establislhed native states but rather a
congeries of small groups something like clans." (E. G.
Bourne.) "    "The sentiment of national unity or solidarity did not exist."  (Apolinari Mabini.) i9   Political
organization and centralized, extended state authority
was lacking.
~ 32. Degree of civilization.-Having in mind the
foregoing description of general pre-Spanish conditions
and the governmental organization in vogue at that time,
the identical conclusion of able writers of different nationalities would seem to be just.50  "The inhabitants of
these islands were by no means savages, entirely unreclaimed from barbarism before the Spanish advent in the
16th century. They had a culture of their own." (Jolin
Foreman.) 61 They "had already reached a considerable
degree of civilization at the time of the Spanish conquest."  (Ferdinand Blumentritt.) 5   "Upon the arrival
of the Spaniards, they found the ancestors of the presentday Filipinos in possession of considerable culture, which
is somewhat comparable to that of some of the mountain
peoples of to-day." (Dr. James A. Robertson.) 6 "The
Filipino people, even in pre-historic times, had already
47 History of the Philippines, 2d Ed., 1907, p. 102.
48 Historical Introduction to Blair and Robertson, pp. 38, 39.
9 La Revolucion Filipina, p. 8.
60 Some of the Spanish writers were, however, inclined to emphasize over much the bad qualities of the "Indians."
61 The Philippine Islands, 3rd Ed., 1906, p. 166.
62 Philippine Information Society, The Philippine Problem, May 1,
1901, pp. 9, 13.
63 Cablenews-American Yearly Review Number, 1911, p. 22.




44


PHILIPPINE GOVERNMENT


shown high intelligence and moral virtues; virtues and
intelligence clearly manifested in their legislation, which,
taking into consideration the circumstances and the epoch
in which it was framed, was certainly as wise, as prudent,
and as humane, as those of the nations then at the head
of civilization." (Judge Romualdez.) "4
In fine, to make a broad and pertinent comparison, if
the condition of the natives of the Philippines and their
system of government on the date Magellan landed in the
islands be contrasted with life among the inhabitants of
Mexico, Cuba, and the South American countries now
sovereign, on the date entered by Spain, little difference
in degree of civilization is seen. Or more generally
stated, there is nothing to indicate that the people of the
Philippines had such innate characteristics as implied inferior capacity, but on the contrary it is clear that they
had the same relative civilization as has been shown in
the early history of all progressive races.
54 Romualdez, Pre-historic Legislation of the Philippines, I Philippine Law Journal, Nov., 1914, p. 179. Marcelo H. del Pilar, prologue to Filipinas en las Cortes, writes that "The Filipino people, before their annexation to Spain, had their own civilization, their own
writing, their own industries...." (p. 11.)




PRE-SPANISH GOVERNMENT


45


REPRESENTATIVE AUTHORITIES.
Blair and Robertson, The Philippine Islands, 1493 -1898. especially Legaspi, 1569, III, 54; Artieda, 1573,
III, 197, Loarca, 1582, V. 141-185; Plasencia, 1589, VII,
173-181; Rizal's edition of Antonio de Morga, Sucesos
(d las Islas Filipinas, 1609, quoted in XVI, 119-121;
Colin, 1663, XL, 82-87; San Antonio, 1738, XL, 347 -372.
Jose Maria Pavon Aranguru, Las Antiguas Leyendas
de la Isla de Negros, (1838), recovered by Dr. James A.
Robertson, in course of publication in English.
Norberto Romualdez, A Rough Survey of the PreHistoric Legislation of the Philippines, I Philippine Law
Journal, November, 1914, p. 149.
Gregorio Araneta, Penal Legislation of the Philippine
Islands, firstly, in Prehistoric Periods; and, secondly, before the Penal Code was in force, III Philippine Law Review, February, 1914, p. 175.
Charles S. Lobingier, The Primitive Malay Marriage
Law, XII American Anthropologist, April-June, 1910, p.
250.
Austin Craig, A Thousand Years of Philippine History
Before the Coming of the Spaniards (1914).




CHAPTER 3.


THE SPANISH ADMINISTRATION.
~ 33. Conquest.
34. Colonial policy.
35. Relations with Spain.
36. Laws extended.
37. The Governor-General.
38. Central advisory bodies.
39. Central administrative agencies.
40. Provincial administration.
41. Municipal administration.
42. The judiciary.
43. Ecclesiastical administration.
44. Public finances.
45. Commerce.
46. Education.
47. Public order.
48. Filipino participation.
49. Judgment
~ 33. Conquest.1-The medieval history of the Philippines begins with the expedition of Miguel Lopez de
Legaspi and Andres de Urdaneta, sailing from Mexico in
1Jagor, a reliable German writer, in his Travels in The Philippines, says on this subject: "Legaspi first of all annexed Cebi, and
then Panay; and six years later, in 1571, he first subdued Manila,
which was at that time a village surrounded by palisades, and commenced forthwith the construction of a fortified town. The subjection of the remaining territory was effected so quickly that, upon the
death of Legaspi (in August, 1572), all the western parts were in
possession of the Spaniards. Numerous wild tribes in the interior,
however, the Mohammedan states of Mindanao and the Sulu group,
for example, have to this day preserved their independence. The
character of the people, as well as their political disposition, favored
46




THE SPANISH ADMINISTRATION


47


1564. "The work of Legaspi during the next seven years
entitles him  to a place among the greatest of colonial
pioneers." 8  The government of Cebu was organized,
Manila was founded, Luzon and other islands were overrmn, and the sovereignty of Spain was proclaimed.       The
social disintegration of the natives facilitated conquest;
the vagueness of their religious belief made conversion
easy; tact and diplomacy were the principal weapons of
the Spaniards. By the beginning of the seventeenth century Spanish rule can be said to have been fairly established. Much Qf the Philippines, however, particularly
the Moro country, was never more than nominally subject to Spain.3
the occupancy. There was no mighty power, no old dynasty, no influential priestly domination to overcome, no traditions of national
pride to suppress. The natives were either heathens, or recently
proselytized superficially to Islamism, and lived under numerous
petty chiefs, who ruled them despotically, made war upon one another, and were easily subdued. One such community is called
Barangay; and it forms to this day, though in a considerably modified
form, the foundation of the constitutional laws. The Spaniards limited the power of the petty chiefs, upheld slavery, and abolished
hereditary nobility and dignity, substituting in its place an aristocracy created by themselves for services rendered to the state; but
they carried out all these changes very gradually and cautiously."
(pp. 357-359, Eng. Ed.) See further Tavera, Census of the Philippine Islands, 1903, Vol. I, pp. 311-313; Robertson, Legazpi and Philippine Colonization, Rep. Am. Hist. Assoc. 1907, pp. 143-156.
2 Bourne, Introduction to Blair and Robertson, The Philippine
Islands, p. 32. The adelantado Legaspi was "a model of courage,
prudence, and humane moderation." Barrows, The Governor-General of the Philippines under Spain and the United States, XXI Am.
Hist. Rev., Jan., 1916, p. 289.
3 "The Sulu sultanate remained practically independent for four
hundred and twenty-five years. Its decline was not caused by national retrogression or political dissension, but by the hostility and
aggression of its adversary.... The tenacity with which the
Sulus resisted Spanish domination, their obdurate opposition and
bravery in battle, and their obstinate passive resistance in peace,




48              PHILIPPINE GOVERNMENT
The government inaugurated in the Philippines was
simple in structure. Legaspi became the first GovernorGeneral and Captain-General, with the title of adelantado.
Encomiendas 4 (a grant of the people or of the land and
baffled all Spanish efforts to subvert their political organization or
gain a single point of advantage without paying too dearly for it.
The Sulus succeeded at last in inaugurating their candidate as Sultan
of Sulu. Their laws and the administration of their internal affairs
were not interfered with. The religion, social conditions, national
usages and customs were unaffected by any change whatsoever.
Spanish influence and jurisdiction did not extend beyond the limits
of the garrison and no material reform or progress reached the Moro
community through that channel. No effort was made by Spain to
educate the Sulus and no adequate measure was proposed by her governors which was applicable to the needs of the Sulus and acceptable
to their ideas. The Sulus felt that there was a strong inclination on
the part of the Spanish Government or some of its recognized agents
to change their religion and destroy their national unity, and consequently they never had complete confidence in Spanish officers and
representatives and repulsed every influence that tended to establish
close relations between them and the Christians of the Spanish garrison. No tax or tribute was collected from the Sulus, and their
territory was exempted from the operation of the laws of the Philippine Islands. Sulu imports could come in Sulu craft free of duty
and unhampered by any vexatious regulation." Saleeby, The History
of Sulu, pp. 133, 139. "It is a striking instance of the irony of fate
that, just as modern weapons have turned the scale in favor of the
Spaniards in this long struggle, and brought the Moros within measurable distance of subjection, when only one more blow required to
be struck, Spain's Oriental Empire should suddenly vanish in the
smoke of Dewey's guns." Sawyer, The Inhabitants of the Philippines, p. 364.
"Some of these expeditions in search of conquest were enterprises undertaken for private gain, others for the benefit of the governor; and such service was rewarded by him with grants of lands,
carrying an annuity, offices, and other benefits (encomiendas, oficios
y aprovechamientos). The grants were at first made for three generations (in New Spain for four), but were very soon limited to two,
when Di los Rios pointed this out as being a measure very prejudicial
to the Crown, 'since they were little prepared to serve his Majesty, as
their grandchildren had fallen into the most extreme poverty.' After




THE SPANISH ADMINISTRATION


49


people) were allotted. The native barangays were recognized.
Spanish title rested on "discovery" confirmed by use
and conquest.
~ 34. Colonial policy.-Three        anomalous and      repugnant motives induced Spain to retain the Philippines,
an unselfish desire for religious conversion, a selfish desire for commerce, and a mixed desire for political aggrandizement. King Philip II writes to Velasco: "You
shall stipulate that they try to bring some spice in order
to make the essay of that traffic." But Legaspi was ordered to show the greatest respect to the five Augustinian
friars who accompanied the expedition, "since you are
aware that the chief thing sought after by His Majesty
is the increase of the Holy Catholic faith and the salvation of the souls of these infidels." 6 Such motives became the bases of the Spanish colonial policy. As a re-,
suit, nothing short of the permanent retention of the
Philippines with unqualified retention of power was ever
seriously considered.
the death of the feoffee the grant reverted to the state; and the governor thereupon disposed of it anew. The whole country at the outset was completely divided into these livings, the defraying of which
formed by far the largest portion of the expenses of the kingdom.
Investitures of a similar nature existed, more or less, in a territory of
considerable extent, the inhabitants of which had to pay tribute to the
feoffee; and this tribute had to be raised out of agricultural produce,
the value of which was fixed by the feudal lord at a very low rate,
but sold by him to the Chinese at a considerable profit." Jagor,
Travels in the Philippines, Eng. Ed., p. 360.
6 Quoted in McKinley, Island Possessions of the United States,
pp. 204, 205. The Spanish King, according to Argensola, (A New
Collection of Voyages and Travels into Several Parts of the World,
compiled by John Stevens, London, 1711) was governed by a religious motive, and we read that "when worldly Interests have proposed the quitting of those Dominions... that most prudent
Monarch answer'd that the Philippines should be maintained in the
same manner they were," to facilitate the propagation of the Gospel.
P. I. Govt.-4.




50


PIIILIPPINE GOVERNMENT


It is to the credit of Spain that in thus imposing herself on an alien people, the native customs and institutions
that did not interfere with the course of government were
respected.  The laws of the Indies were protective to a
high degree.    The chiefs of the barangays were left in
authority.6  All changes came gradually and cautiously.
Innovations were either to suppress heathen vices and
practices, or to reduce the people to village life in order
to provide a means for conversion, or training in industry
"For what would the Enemies of Christ say, if they perceived that
the Philippine Islands were left destitute of the true Light, and its
Ministers to propagate it, because they did not produce rich Metals
and other Wealth, like the Rest of the fruitful Islands in Asia and
America?" "It has generally been said that Spanish colonization was
based on religion. This is not the case. It was based on commerce."
Lecture by James A. Robertson, Early Social and Economic History
of Manila, before the Philippine Academy, January 7, 1914. "It is
wrong to say, as is so often said or implied, that Spain discovered and
afterward maintained her Philippine colony entirely for the purpose
of converting lost souls to Christianity. Commercial aims. and above
all the political ambitions of an age of discovery abroad and of a
period of internal strife in Europe, played a large part in this national enterprise of the sixteenth and seventeenth centuries." Le Roy,
Philippine Life in Town and Country, p. 117.
6 Rccopilaci6n de Leyes, lib. vi, tit. vii, ley xvi, contains the following in regard to the native chiefs: "It is not right that the Indian
chiefs of Filipinas be in a worse condition after conversion; rather
should they have such treatment that would gain their affection and
keep them loyal, so that with the spiritual blessings that God has
communicated to them by calling them to His true knowledge, the
temporal blessings may be joined, and they may live contentedly and
comfortably. Therefore, we order the governors of those islands to
show them good treatment and entrust them, in our name, with the
government of the Indians, of whom they were formerly the lords.
In all else the governors shall see that the chiefs are benefited justly,
and the Indians shall pay them something as a recognition, as they
did during the period of their paganism, provided it be without prejudice to the tributes that are to be paid us, or prejudicial to that which
pertains to their enco)mcnderos." Felipe II, Madrid, June 11, 1594,
quoted in XVII Blair and Robertson, pp. 155, 156.




THE SPANISH ADMINISTRATION


51


so that they could support themselves and contribute
money to the colonial establishment.7
~ 35. Relations with    Spain.8-Until Mexico     revolted from Spain in 1819, the Philippines were in a sense
a dependency of Mexico. After that date, the Archipelago was a distinct governmental unit. Included therein were the Philippines as now known and the Ladrone,
Caroline, and Pelew Islands.
In Spain, the Philippines were under the general control of the Council of the Indies until 1837. After various experiments, they were placed under the Ministcrio
(de Ultramlar (Colonial Department) in 1863.8"  To this
Ministry, acting for the Crown, was confided the superior administration of the islands. Among its important powers was the appointment and renoval for the
Crown of all the high functionaries of the colony. The
Minister of the Colonies was assisted by the "Consejo (Ic
Filipilas" (Council of the Philippines) sitting permanently in Madrid. This body was composed of the subsecretary and directors of the Ministry of Ultramar as
members ex-officio and twelve members selected because
of their knowledge of colonial affairs. The Council was
consulted by the Minister of the Colonies, could be required to draft decrees, and could initiate and present reforms. It was of little practical utility.
The Philippines, as a colony of the Crown of Spain, except for short periods, did not secure the benefits of the
Spanish Constitution. Unlike Cuba and Porto Rico, to
which the Constitution was eventually extended, there was
an article in the fundamental law providing in effect that
7 See Bourne, Spain in America, p. 258.
8 See Tavera, Census of the Philippine Islands, 1903, Vol. I, pp.
362, 370; Report of the First Philippine Commission, Vol. I, pp.
72, 73.
8a Royal decree of May 20, 1863, San Pedro, Lcgislacion Ultramarina, Vol. I, p. 185.




52


PHILIPPINE GOVERNMENT


the Philippine Islands shall be governed by special laws.9
Consequently, all law for the islands originated in Spain.
"The decrees, instructions, and ordinances sent to these
islands, both to the Governor and to other tribunals and
officials, are the rule for the right government in the
islands." 10 The method in vogue was, therefore, in accordance with the provisions of the Laws of the Indies
and the Constitution to extend the laws or codes of Spain
to the islands by royal decrees.1     Frequently under the
power of cumplase, the Governor-General would suspend
or disregard royal decrees.
~ 36. Laws extended.12-Not to           attempt a complete enumeration, particularly of royal orders and decrees, there should be first mentioned, as laws having at
9 Chief Justice Arellano, Historical Resume of the Administration
of Justice in the Philippine Islands, Report of the Second Philippine
Commission, November 30, 1900, p. 234. Article 89 of the last Spanish constitution reads:
"The Colonial provinces shall be governed by special laws; but the
Government is authorized to apply to them, with the modifications it
may deem advisable and informing the Cortes thereof, the laws
enacted or which may hereafter be enacted for the Peninsula.
"Cuba and Puerto Rico shall be represented in the Cortes of the
Kingdom in the manner determined by a special law, which may be
different for each of the two provinces."
10 Letters to Felipe IV from Governor Tavora, XXII Blair and
Robertson, p. 274.
11 Conversely stated, no laws were enacted in the Philippines. "Q.
How are those laws passed? A. They are made in Madrid, at the
initiative of the minister for the colonies in the Cortes, and signed by
the Queen. Q..         Is no law made by these islands, by the
governor-general? A. No law is made here; they come, all, from the
office of the minister of the colonies." Testimony of Chief Justice
Arellano before the First Philippine Commission, Vol. II, Report of
Commission, pp. 20, 21.
12 See Chief Justice Arellano, Historical Resume of the Administration of Justice in the Philippine Islands, Report of the Second
Philippine Commission, Nov. 30, 1900, pp. 234-241; Lobingier, The
Spanish Law in the Philippines, I Philippine Law Review, March 15,




THE SPANISH ADMINISTRATION


53


least suppletory force in the Philippines, Las Siete Partidas (The Seven Parts)-a       compilation of previous
Spanish laws; Las Leycs de Toro (The Laws of Toro)dealing mostly with wills and succession, with some attention to penal law; Leycs de las Indias (Laws of the
Indies)-a system    of colonial legislation; La Novisima
Recopilacion (The New      Compilation)-relating to all
branches of the law: Ley de Minas (Mining Law); the
Notarial Law of 1862, put in force in the Philippines in
modified form in 1889, with the regulations of the following year; the Spanish Military Code; and the Ley de
Propiedad Intelectnal (Copyright Law).       The modern
codes and special laws, some of which, at least in parts,
survived American Occupation, are, however, much more
important in effect.  These were the Penal Code, as revised for the islands,18 coming into force in the Philippines in 1887; the Code of Commerce of 1885, as modified for the islands, extended to the Philippines in 1888;
the Ley Provisionzal, dealing, in connection with the Penal
Code, with criminal procedure; the Ley de Enjuiciamionto Criminal of 1872 (Code of Criminal Procedure),
"which, though never in actual force in these islands, was
formerly given a suppletory or explanatory effect;" "
1912, and Annual Bulletin No. 4, Comparative Law Bureau, Aug. 1,
1911; Lobingier, Modern Civil Law, I Philippine Law Review, May,.
June, September, November, 1912, January, 1913; Abreu, The Blending of Anglo-American Common Law, with the Spanish Civil Law
in the Philippine Islands, III Philippine Law Review, May, 1914, p.
285; Walton's Civil Law in Spain and Spanish America.
1s The most important new provision was article 11, reading as follows: "The circumstance of the offender being a native, mestizo, or
Chinaman shall be taken into consideration by the judges and courts
in their discretion for the purpose of mitigating or aggravating the
penalties, according to the degree of intent, the nature of the act, and
the circumstances of the offended person."
14 Rakes v. The Atlantic, Gulf & Pacific Co. (1907), 7 Phil. 359,
363.




54


PHILIPPINE GOVERNMENT


Ley de Enjuiciamiento Civil (Code of Civil Procedure),
effective in 1856, revised in 1881, and extended to the
Philippines in 1888; the Civil Code of 1889, except Titles
IV and XII of Book I, suspended by the Governor-General, and thus reviving a portion of the Marriage Law of
1870;1" the Ley Hipotecaria (Mortgage Law) of 1889,
revised in 1893; the Railway Laws of 1875 and 1877;
and the Ley de Aguas (Law       of Waters) of August 3,
1866. Other Spanish laws have been cited in the Philippine Reports.16
These laws have, generally, been praised. The historian Dunham speaks of the Siete Partidas as "by far the
most valuable monument of legislation, not merely of
Spain but of Europe, since the publication of the Roman
(Justinian) Code." 7    The Mortgage Law has been described as "a great masterpiece of legislation." 18 The
15 See Compilacion Legislativa de Ultramar, Vol. XIV, p. 2740;
De la Rama v. De la Rama (1903), 3 Phil. 34; Ebreo v. Sichon
(1905), 4 Phil. 705; Del Prado v. De la Fuente (1914), 28 Phil. 23;
Ramos, Marriage: Forms, Celebration, and Legal Consequences, pp.
90, 91, 187, 188.
16 See Laurel, What Lessons may be learned by the Philippine
Islands from the legal history of Louisiana, 2 Philippine Law Journal, August, September, 1915.
17 History of Spain and Portugal, Vol. IV, p. 109. The learned
Alonzo Martinez in a speech made at the opening of the Supreme
Court of Spain said: "The Siete Partidas are undoubtedly in principle and form, by reason of their contents, the clearness of the composition, and the inimitable graceful language and style, an imperishable monument of wisdom, without rival in Europe during the Middle Ages; and, as everything which is superior rules by legitimate
right, this code has been in the past and is still the beacon which
illuminates and guides the courts, judges, and lawyers through the
darkness of our contracted and contradictory civil legislation."
Quoted by Chief Justice Arellano in article cited supra. "A code of
legal principles, which is at once plain, simple, concise, just, and unostentatious to an eminent degree." 2 Kent Comm. 240. See further
Altimira in A General Survey of Continental Legal History, Ch. II.
l8Abreu, The Blending of Anglo-American Common Law, with




THE SPANISH ADMINISTRATION


55


Civil Code has been spoken of "as a monument to Spanish legislative capacity." 19  While also there has, naturally, been criticism of these laws,2 it has remained for
the Laws of the Indies to invoke a unanimous peon of
laudation-"the greatest of Colonial books"; 1 "tlley
lived under the 'Leyes de Indias' (may their makers have
found favour with God), a code of laws deserving of the
greatest praise for wisdom     and humanity." 22     "Those
who judge the merits of the Recopilacion de Indias,
the Spanish Civil Law in the Philippine Islands, III Philippine Law
Review, May, 1914, p. 291. The Spanish Colonial Minister Maura in
his exposition of the Mortgage Law for the Cortes says it "must be
looked upon as one of our most important legal works." Quoted in
Walton's Civil Law, p. 501.
19 Lobingier, I Philippine Law Review, 607. The eminent French
Jurisconsult A. Leve pays a high tribute to it. Walton's Civil Law,
p. 107 n. "The Spanish civil code, although based on the 'Siete Partidas,' was subjected to such radical changes under the influence of the
Napoleonic code that little of its original character remained. After
passing through a series of additional revisions during the latter
half of the nineteenth century, it finally reached a degree of perfection, so far as precision of formulation is concerned, which made it
decidedly superior in this respect to any of the Latin-European
codes." Rowe, The United States and Porto Rico, pp. 162, 163.
20 E. g. "Considering the age in which it (La Novisima Recopilacion) was compiled, it is much inferior to the 'Fuero Juzgo' which
preceded it by eleven centuries and the'Partidas' of six centuries before." Walton's Civil Law in Spain and Spanish-America, p. 79.
"The great book of Spanish Law, called 'The Partidas,' has a similar
history to the Pandects. The Partidas purport to be an original compilation of the laws of Spain, but are in fact mainly a condensation
of the Pandects, made after the finding of the copy at Amalphi. The
Partidas were heralded as the most wonderful production of the
Spanish jurists. How small their work and how baseless the pretensions of the authors will be shown by a comparison of the two
works.... The Partidas bear the appearance of a compilation
of a rude people, made from the laws of a former highly civilized
race." Ware, Roman Water Law, pp. 17, 18, 141.
21 Barrows, History of the Philippines, 2nd Ed., 1907, p. 110.
22 Sawyer, The Inhabitants of the Philippines, p. 51.




56


PHILIPPINE GOVERNMENT


solely from the results of the civilization which it was intended to direct, will do but poor justice to the most complete and comprehensive scheme of Colonial government
which the world has ever known. Although, no doubt,
greatly defective in many particulars, and tinctured most
prejudicially with the errors in political economy which
were peculiar to the times, the Recopilacion bears all
about it evidences of the most farseeing wisdom, the
most laborious and comprehensive investigation and
management of details, and a spirit of enlightened
humanity not easily exceeded." 28
A study of the Philippine legal system under Spain will
show that it was most complete, providing rules of action
in almost every conceivable field of activity. These laws,
moreover, theoretically guarded the three vital rights of
personal liberty, personal security, and personal property.24 The Philippines were given all the benefits of a
substantive law, based on the scientific and widespread
civil law of Rome (as influenced by the Germanic, Canonical, and Arabic elements), of which it has well been
said that "no wiser or better system of law has ever been
devised by the genius of man...; and it is safe to
say that it will remain forever, unrivalled and unapproached in the annals of jurisprudence." 25 At the same
time, the islands were likewise granted an adjective law,
unanimously condemned by impartial critics as "skillfully
adapted to the promotion of delay, expense, and denial of
justice." 26
23 Wallis, Spain, her Institutions, etc.
24 Abreu, The Blending of Anglo-American Common Law, with the
Spanish Civil Law in the Philippine Islands, III Philippine Law Review, May, 1914, p. 294.
25 Morris, History of the Development of the Law, p. 169.
26 Preliminary Report of the Second Philippine Commission of
November 30, 1900, pp. 81, 82. "Legal proceedings were interminable, and one of the worst things which could befall an individual or




THE SPANISH ADMINISTRATION


57


~ 37. The Governor General"            was the personal,
representative of the Spanish Crown in the Philippines.
As such he had close relations with the Minister of the
Colonies and was under his immediate control. In addition he was considered the delegate of each of the home
ministries of state, of war, and of marine, in matters
specially pertaining to those departments. He held office
at first for a term of eight years, later for three years, but
generally in practice for no stated period. From the time
of Legaspi's anchorage near Cebu in 1565 until Diego de
los Rios leaves the islands in 1899, there were over one
hundred Governors-General of the Philippines.' Such
conditions led Rizal to write in his famous novel, NoliMe-Tangere:
"Moreover, if perchance there does come into a high
place a person with great and generous ideas, he will begin to hear, while behind his back he is considered a fool,
a corporation in the Spanish days was to become involved in a lawsuit." Gregorio Araneta, in Appendix to Worcester, The Philippines
Past and Present, Vol. II, p. 993. In the address of Minister Martinez submitting for the royal approval the revision of 1882 appears
the following testimony to a weakness of Spanish procedure in actual
operation: "Without ignoring the fact that the Constitution of 1812,
the provisional regulations for the administration of justice of 1835,
and other subsequent provisions, greatly improved the criminal procedure, it would be unreasonable to deny that even under the legislation in force it is not unusual that the preliminary proceedings
last eight or more years, and it frequently happens that they do not
last less than two, the temporary imprisonment of the accused continuing in some cases during this entire period." For a vivid description of the Spanish system of remedial law, see the works of
Sawyer, Foreman, etc.
26a See generally David P. Barrows, The Governor-General of the
Philippines under Spain and the United States, XXI Am. Hist. Rev.,
Jan., 1916, pp. 288-299.
27 For a list of Governors-General of the Philippines, see Gazetteer
of the Philippine Islands, pp. 147, 148 and XVII Blair and Robertson,
pp. 285-312.




58


PHILIPPINE GOVERNMENT


'Your Excellency does not know the country, your Excellency is going to ruin them, your Excellency will do
well to trust So-and-So,' and his Excellency in fact does
not know the country, for he has been until now stationed
in America, and besides that, he has all the shortcomings
and weaknesses of other men, so he allows himself to be
convinced. His Excellency also remembers that to secure
the appointment he has had to sweat much and suffer
more, that he holds it for only three years, that he is
getting old and that it is necessary to think, not of quixotisms, but of the future: a modest mansion in Madrid, a
cozy house in the country, and a good income in order to
live in luxury at the capital-these are what he must look
for in the Philippines. Let us not ask for miracles, let us
not ask that he who comes as an outsider to make his fortune and go away afterwards should interest himself in
the welfare of the country.... And the worst of
all this is that they go away just when they are beginning
to get an understanding of their duties." 2
Until 1822 no distinctions were made in appointments
to the office; from that date the practice was to appoint a
General of'the Army as Governor.29 The position carried a salary of 40,000 pesos with liberal allowances.80
In case of death, absence on leave, or temporary incapacity, the powers of the Governor-General at first devolved
upon the Audiencia (Supreme Court), later upon the
Archbishop of Manila.81 Subsequently the order of succession was changed so that the Segundo Cabo, the officer
second in command of the army or in his absence the com28 English Translation as "The Social Cancer", p. 196.
9 Montero y Vidal, Archipielago Filipino, 1866, pp. 162-168, XVT
Blair and Robertson, p. 335.
80 See Le Gentil, Voyage dans Les Mers de L'Inde, 1781, ii, p. 152.
81 Tavera, Census of the Philippine Islands, 1903, Vol. I, pp. 363,
365.




THE SPANISH ADMINISTRATION


59


mandant of the naval station, became the Acting Governor-General."
All authors agree in emphasizing the almost regal
power of the Governor. He possessed all the powers of
the King, save where it was otherwise specially provided.
His authority was "supreme" and "complete" —"almost
absolute"-"practically  unlimited." u   In  Coronado's
Legislacion Ultramarina 3 it is said: "This consolidation
of such vastly important powers, although it has some inconveniences, has been deemed necessary in order to surround with prestige and sustain a superior authority at so
great a distance from the sovereign, in the capitals of
those large provinces, sufficiently to provide speedily and
easily all requirements for their preservation and tranquillity, for which the captains general are responsible,
and to provide also a good policy and administration, the
security of the persons and property of the inhabitants,
the publication and due execution of the laws and orders
emanating from the high government, and, generally,
every wise and prudent measure demanded by the public
order, the tranquillity, and greater prosperity of the countries intrusted to them." Writing of the "power which
is exercised by the Governor who rules the islands in the
name of his Majesty," Antonio Alvarez de Abreu, in his
Extracto Historial, 1736, says:
"So great is this that it may be affirmed with truth
that in all his kingdoms and seignories (although the
viceroyalties are classed as superior to that government)
the king does not appoint to an office of greater authority.
If this is not evident, let it be noticed how many crowned
82 Montero y Vidal, id.; San Pedro, Legislaci6n Ultramarina, Vol.
I, 134.
8 Insular Government v. Jover (1911), 221 U. S. 623, 55 L. Ed.
884, quoting Montero y Vidal, p. 162; Tavera, Census, p. 364, etc.
34 Vol. 2, pp. 175, 176, etc. See Laws of the Indies, Book 2, title 15,
law 11; Book 3, title 3, law 2.




60


PHILIPPINE GOVERNMENT


kings render homage to that governor, and recognize him
as superior; how they respect him and fear his arms; how
they desire his friendship, and, if they violate it, receive
punishment.... And it ought to be considered that
the governor of Philipinas sends ambassadors to all those
kings, with gifts to present to them, and receives those
that they send to him in return; he makes peace and declares war, and does whatever seems to him expedient;
and all this on his own responsibility, without waiting for
a decision of the matter from Espaia, because the excessive distance renders him the entire master in these acts.
This is a pre-eminence of so great authority that no governor or viceroy in Europe exercises it. The grandeur
which this monarchy preserves in those islands is widely
known." 85
The functions 8 of the Governor-General included, as
Captain-General, the chief command of the military and
naval forces of the islands. Moreover, he could appoint
and remove all subordinates of the civil administration,
except the few who received royal appointments. He had
85 XXX Blair and Robertson, pp. 31, 32. See to same effect Juan
Jose Delgado, Historia (1754), Ch. XVII, pp. 212-215, XVII Blair
and Robertson, pp. 314-322. For a Filipino view, see Mabini, La
Revolucion Filipina, pp. 22-24.
86 "In detail the functions of the Governor-General are as follows:
"1. As the direct delegate of the central power, (1) to publish, execute, and enforce in the provinces under his administration, the
laws, decrees, orders, and commands of general character issuing
from any of the ministries to which he is subject, and also to secure
the fulfillment of all international obligations pertaining to the
provinces; (2) to watch over and inspect all the branches of the
public service of the state in the islands, and to give an account to the
ministries which he represents of any or all matters affecting them;
(3) to exercise, in certain specified cases, the prerogative of pardon;
(4) to suspend the resolutions, or enforcement of orders of the General Government whenever grave public interests in the islands so demand, giving immediate notice thereof, with reasons therefor, with
all possible dispatch; and also to suspend the execution of any act or




THE SPANISH ADMINISTRATION


61


complete control over all executive matters.        He had
judicial powers and for a long period of time was President of the Supreme Court. His extensive prerogatives
extended to all matters pertaining to the integrity of the
territory, the conservation of public order, the observance
and the execution of the laws, responsibility for the revenues, and the protection of persons and property.
One restriction on the authority of the Governor-General was official encouragement of direct report on the
policy and character of the Governor from subordinate
officials 36a Another restriction was for a time the check
imposed by the Audiencia. The efforts of the latter in
resolution of inferior authorities whenever circumstances may compel.
"2. As chief of administration in the archipelago his functions are
(1) to maintain the integrity of the administrative regime in accordance with law; (2) to publish orders and commands for the fulfillment of the laws and regulations, and for the administration and
government of the islands, giving an account of his action to the
minister of ultramar; (3) to propose to the home government whatever in his opinion might promote moral and material interests; (4)
to suspend associations or corporations which are found in delicto;
(5) to authorize the imposition of fines by the governors of provinces
upon public officers or corporations; (6) to suspend, for cause, the
public servants of the administration appointed by the home government, giving immediate notice thereof, and filling the vacancies meanwhile in a manner corresponding to the law.
"3. In his position of head of the military and naval forces within
the archipelago, the Governor-General has the power of the directing-inspector of all military bodies, arms, and equipment. He has the
same power and functions as are accorded to the captain-generals of
the various districts of the peninsula, with the additional power of
the disposition of troops, and the assignment of superior officers to
commands, together with the multitudinous and multifarious powers
and functions belonging to the general in command of an army
corps." Report, First Philippine Commission, Vol. I, p. 74. See also
Barrows, The Governor-General of the Philippines under Spain and
the United States, XXI Am. Hist. Rev., Jan. 1916, pp. 291-299.
s86 Barrows, id., pp. 292, 293.




62


PHILIPPINE GOVERNMENT


this direction were generally ineffectual.7 Another restriction was the ordeal of the Residencia at the expiration of office. This was a peculiar Spanish institution designed to hold colonial officials to strict accountability
for all acts during their term of office. One or more commissioners, generally the successor in office, appointed for
the purpose, opened a court, usually for six months, at
which all persons with grievances to complain of against
the outgoing official could present their charges.38 Report
was then made to the home government.        This method
of enforcing responsibility was of varying efficacy.
A viceroy of Peru compared the residencia "to the whirlwinds which we are wont to see in the squares and streets,
that serve only to raise the dust, chaff, and other refuse
and set it on our heads."89 Eventually it fell into disuse.
Occasionally the Philippine government was subjected to
the inspection of a visatador. Appeal could be taken from
the decision of the Governor-General to the Council of
Administration or to the supreme Spanish government,
according to the nature of the case.4
~ 38. Central advisory bodies.41-The GovernorGeneral was assisted in the administration of the islandsby two deliberative bodies, the Junta de Autoridades (the
37Zufiiga, Estadismo de las Islas Filipino 6 mis Viagcs por este
Pais, Ed. Retana, i, p. 244.
88 Recopilaci6n de Leyes de las Indias, lib. V, tit. XV, ley VII.
89 Bourne, Spain in America, pp. 231, 232. See also Foreman, The
Philippine Islands, 3rd Ed., 1906, p. 79; Gemelli Careri (Italian traveller in Philippines in 1697) Churchill, Collection of Voyages, IV, 411.
Helps, Spanish Conquest in America (new ed.), III, 102-109, traces
the history of the institution.
40Arellano C. J. in Roura v. Insular Government (1907), 8 Phil.
214.
41 See Report, First Philippine Commission, Vol. I, pp. 75, 76;
Testimony of Manuel Sastr6n, Spanish author and administrator,
before the Commission, Vol. II, pp. 102-104; Testimony of Chief
Justice Arellano, Id., pp. 19-22.




THE SPANISH ADMINISTRATION


63


Board of Authorities) and the Consejo de Admninistracion
(the Council of Administration). The first, created by
royal decree of April 16, 1850, served as a cabinet to the
Governor-General; the latter, established pursuant to a
royal decree of July 4, 1861,4 as a representative advisory board. Neither had legislative functions, except that
the Council of Administration could propose regulations
for executive sanction putting the Spanish laws into
force. The acceptance of the advice of either body did
not relieve the Governor-General of personal responsil)ility.
The Board of Authorities was composed of the Governor-General, as president; the Archbishop of Manila;
the General, second in command; the Admiral of the
Navy; the treasurer; the director-general of the civil administration; the President of the audicncia (Chief Justice of the Supreme Court); and the Attorney-General.
Its functions were purely consultative, advising the Governor-General on questions of unusual importance, especially in cases where it was needful for him to have the
co-operation of heads of departments.
The Council of Administration was likewise a consultative body, but of rather large representation. It was
composed of some twelve members ex-officio-the Governor-General as president; the Archbishop of Manila;
the General, second in command; the Admiral of the
Navy; the Chief Justice of the Supreme Court; the
treasurer; the director-general of the civil administration; the reverend fathers superior of the religious
orders; the president of the Chamber of Commerce of
Manila; and the president of the Society of Friends of
the Country (azmigos del pais). In addition there were
six delegated members, three from the provinces of Luzon
2 See further royal decrees of March 19, 1875, and Sept. 13, 1888,
in connection with decree of Nov. 23 same year.




64


PHILIPPINE GOVERNMENT


and three from the Visayan provinces, and four members
of royal naming. Two only of the Council received salaries; their duties were to prepare papers in proper form
for consideration. The powers and duties of this council
of administration were to consider the general budgets;
the local budgets; changes in the regulations or instructions which the Governor-General could propose to the
home government; questions of royal patronage, and all
other matters which the Governor-General might see fit
to submit for opinion.
~ 39. Central administrative agencies.4'-The Governor-General exercised his civil functions by means of
administrative officials.  The most important of these
were the director-general of the civil administration, the
intendente general de hacienda (the treasurer), and a
secretary. They had control of the various bureaus of the
government. The office of the director-general of the
civil administration was charged with the management of
municipal and provincial governments, public instruction,
public works, mines and forests, public health, charity,
agriculture, and communications.     The treasurer had
control of customs, lotteries, the treasury, and supervision of the auditor. One of the Governor-General's secretaries acted relative to matters pertaining to patronage,
public order, the judiciary, and international affairs.
There were, of course, numerous other boards and offices.
~ 40. Provincial    administration."-The       islands
were divided for administrative purposes into provinces
and districts, attempted to be formed according to the
4 See Report, First Philippine Commission, Vol. I, pp. 76-78;
Tavera, Census of the Philippine Islands, 1903, Vol. I, pp. 363-365;
Mabini, La Revolucion Filipina, pp. 22-24.
See generally Report, First Philippine Commission, Vol. I, pp.
63-72; Foreman, The Philippine Islands, 3rd Ed., 1906, pp. 213-216;
Jagor, Travels in the Philippines, Eng. Ed., pp. 54, 55, 122; Sawyer,
The Inhabitants of the Philippines, pp. 8, 9, 10, 53; Montero y Vidal,




THE SPANISH ADMINISTRATION


65


dialects spoken by the inhabitants.'5 Few and of large
extent, in the beginning, subdivisions were made until
there were a large, and an excessive number of provinces
and districts." The fundamental division was into civil
and military. The former came to cover the major portion of Luzon. The rest of the islands, including the
Visayas, Mindanao, and the Sulu Archipelago, was under
military rule. It was intended in due time to appoint
civil governors to every district as each became fit for it.
Civil government was divided into four classes according  to  importance, wealth, and      size-Manila, which
ranked all others, and first, second, and third class (de
termiino, de ascenso, de entrada).47
Leaving aside the powers of the military officers and
the politico-military governors, the beginning of civil
government came through the appointment of Alcaldes
Mayores (Judicial Governors) as successors to the Encomenderos.    The Alcaldes Mayores combined both executive and judicial functions." They received small
salaries of from 300 pesos a year and upwards, but with
the privilege of trading (indulto de comercio), making
Archipielago Filipino, 1866, pp. 162-168, XVII Blair and Robertson,
pp. 328-334.
45 For an historical summary of the variations in the names of the
provinces, see Retana's Znfiiga's Estadismo, ii, p. 376 ff.
6According to Foreman, The Philippine Islands, 3rd Ed., 1906,
p. 213, "The Archipelago, including Sulu, was divided into 19 Civil
Provincial Governments, 4 Military General Divisions, 43 Military
Provincial Districts, and 4 Provincial Governments under Naval Officers, forming a total of 70 Divisions and Sub-Divisions." Sawyer,
The Inhabitants of the Philippines, pp. 8, 9, gives the number as fiftyone provinces or districts.
47Royal decrees of December 11, 1830, and September 28, 1844,
Vol. VI Alcubilla, Diccionario de la Administracion, p. 520.
48 "This created a strange anomaly, for an appeal against an edict
of the Governor had to be made to himself as Judge. Then if it were
taken to the central authority in Manila, it was sent back for 'information' to the Judge-Governor, without independent inquiry' being
P. I. Govt.-5.




66


PHILIPPINE GOVERNMENT


the office very remunerative to the holders.' The first
reform came in 1844 when the Alcaldes were prohibited
from trading. Finally in June, 1886, executive and
judicial functions were separated, eighteen civil governors were appointed to the principal provinces, and the
made in the first instance; hence protest against his acts was fruitless." Foreman, The Philippine Islands, 3rd Ed., 1906, p. 213. "The
islands are divided by provinces, in each of which there is a subordinate chief who is styled governor or alcalde-mayor. These exercise
jurisdiction in the first instance, in matters of government and litigation. They are military captains, and have in charge the collection of
the royal revenues, under a responsibility guaranteed by bonds to the
satisfaction of the accountant-general of the army and royal treasury.
The province of Cavite is an exception to this rule, for the collection
of the tribute there is now made by an assistant of the chief justice.
Therefore he who rules in a province exercises all the attributes of
political chief, and as such is subject to the Governor-General; those
of judge of first instance, and as such is dependent on the Audiencia;
those of sub-delegate of treasury (although he does not have the disposal of the monopolized incomes), and as such has to render accounts, bonds, and obedience to the chiefs of the treasury; and finally,
if lih is of military rank, he is commandant-of-arms, and subaltern
of the captain-general; and even though he be not of military rank
he obtains the rank of military commander (capitan a guerra) by
virtue of his rank of alcalde mayor. He has charge of the company
assigned to his province, and, in the absence of his Majesty's troops,
he commands the troops that he equips upon extraordinary occasions." Sinibaldo de Mas, Informe sobre el estado de las Islas Filipinas en 1842, XVII Blair and Robertson, pp. 323. 324.
49 "The alcaldes were at the same time governors, magistrates,
commanders of the troops, and, in reality, the only traders in their
province. They purchased with the resources of the obras pias the
articles required in the province; and they were entirely dependent
for their capital upon these endowments, as they almost always
arrived in the Philippines without any means of their own. The
natives were forced to sell their produce to the alcaldes and, besides,
to purchase their goods at the prices fixed by the latter." Jagor,
Travels in the Philippines, Eng. Ed., p. 122. "In 1840 some of the
offices of alcalde were worth 50,000 pesos per year." Tavera, Census
of the Philippine Islands, 1903, Vol. I, p. 366; Tomas de Comyn,
State of the Philippine Islands, translation by Walton, p. 197.




THE SPANISH ADMINISTRATION


67


functions of the Alcaldes were confined to their judgeships.
The civil governors so authorized were the direct representatives of the Governor-General. They were named
and removed by virtue of royal decrees issuing from the
MAinister of the Colonies. They were in all cases Spaniards. To be appointed a civil governor one of numerous fixed qualifications was required. Civil governors of
the first class received a salary of 4,500 pesos, of the
second, 4,000 pesos, and of the third, 3,500 pesos; liberal
allowances of various kinds were also made.50 The civil
governor was the chief authority in his province with
wide powers 61 in all administrative and economic matters. He was in a word, the provincial government.
50 Testimony of Manuel Sastron, Spanish author and administrator,
before the First Philippine Commission, Vol. II, p. 105.
1l "The powers and functions of the civil governor are in the main
as follows:
"1. As representative of the Governor-General, his functions are to
publish, execute, and cause to be executed the laws, decrees, and
orders of the Governor-General within his province; to maintain
public order and protect persons and property; to suppress and punish acts within his province which are contrary to the religion of the
state or to public morals; to punish breaches of respect for public
authority, not amounting to crime or misdemeanors; to grant licenses
to carry arms; to hold at his disposition, and to dispose, as may be
necessary, of the force of the civil guard and other civil constabulary
of the province, or, when necessary, to call for the aid of military
forces for the protection and maintenance of public order; to impose,
by way of penalty, a suspension of ten days' salary of employees subject to his orders; to suspend the services and salary of such employees as may be unfit, by reason of lack of qualification or zeal, or
morality, for the discharge of their duty; to publish within his province proclamations relative to good government and public health;
to suspend, with the assent of the other provincial authorities, and
for reasons of public safety, decrees or orders of the Governor-General, immediately informing the Governor-General, however, of such
action, with the reasons therefor; to preside at the meetings of the
provincial councils and at the elections of mayors of local towns of




68


PHILIPPINE GOVERNMENT


Under the Maura Law of 1893 a provincial council to 
be established in the capital of the province was authorthe provinces; to suspend according to law such mayors, or any
other individuals composing the tribunals or town councils; to propose to the Governor-General the dissolution of such town councils
when deemed necessary; to submit to the action of the representatives
of the judicial power delinquent municipal servants; to see that the
ordinances with respect to forbidden games are enforced; to give or
deny permission for the giving of public performances; to look after
the fulfillment of the regulations of the corporations or establishments whose safeguarding is intrusted to him; to exercise the duties
of captain of the port or delegate of the navy in places where no regular officer for that purpose exists.
"2. As chiefs of administration within the province the functions of
the civil governor are to care for public instruction, and especially
for that of the lower grades, and for the extension of knowledge of
the Spanish tongue; to propose to the Governor-General means conducing to the increase of public health and welfare; to propose to the
Governor-General concessions of royal lands according to law; to
give licenses for cutting of timber according to existing regulations;
to care for the collection of taxes of the provinces; to issue executions against defaulting or delinquent debtors to the public funds,
and to discharge such functions in the levying and collection of municipal taxes as have already been described in the section on municipal government; to make up the provincial budgets and remit them
to the Governor-General for his approbation; to order the payment
of sums authorized in the budget; to formulate provincial and municipal accounts, and to certify monthly to the balance of funds in
hand; to care for public works and to determine those which are to
be done by personal service.
"3. As chief administrative officer within the province it is the duty
of the governor to supervise all municipal councils as has heretofore
been described.
"In addition, the provincial governors possess such other powers
as are given them by law in the matters of postal service, telegraphic
service, prisons, jails, charities, public health, public works, forests,
mines, agriculture, and general industry, and such other functions
with respect to the matters mentioned as the Governor-General may
delegate to them." Report of the First Philippine Commission, Vol.
I, pp. 65-67. See also Foreman, The Philippine Islands, 3rd Ed.,
1906, pp. 215, 216.




THE SPANISH ADMINISTRATION


69


ized. There were nine members, five ex-officio, and four
residents of the capital elected by the captains of the
municipal councils for terms of six years, with the civil
governor as presiding officer, and a secretary. The functions of the council were mainly those of inspection and
consultation.
~ 41. Municipal administration.-The unit of local
administration was the "pueblo" which ordinarily embraced an area of many square miles and contained
numerous "barrios" or villages. For its government, the
Spaniards in the beginning continued the native barangavs, confirming the chiefs in authority under the title of
cabcza de baranzgay.   As the next step 62 the towns were
organized with a native official called the gobernladorcillo
(literally "little governor"), with the popular title of
capitcin, at the head.  He was the representative of the
provincial governor, was the arbiter of local questions
except those assuming a serious legal aspect, was responsible for the collection of the taxes, was bound to assist
the parish priest, and entertained all visiting officials.
Assisting the Gobernladorcillo were tenientes (deputies),
alguaciles (subordinate employees), and chiefs of police,
fields, and cattle.63  Elections 64 for municipal offices were
held annually by the outgoing gobernladorcillo and twelve
cabczas de baraitgay, chosen by lot, presided over by the
52 See Remarks on the Philippine Islands, 1819 to 1822, by an Eng- 
lishman, LI Blair and Robertson, pp. 106-108, 121; Sinibaldo de Mas,
Informe sobre el estado de las Islas Filipinas, en 1842, Book II, XVII
Blair and Robertson, pp. 324-327; Montero y Vidal, Archipielago
Filipino, 1866, pp. 162-168, XVII Blair and Robertson, pp. 328, 334.
Also royal decree of Nov. 12, 1889.
53 Jagor, Travels in the Philippines, Eng. Ed., p. 237. See further
as to "alguaciles", Araullo J. in U. S. v. Dungca (1914), 27 Phil. 274.
64 See Sinibaldo de Mas, id. The following interesting account of
an election is given by Jagor, Travels in the Philippines, Eng. Ed.,
pp. 235, 236, 237: "As the annual elections are conducted in the same
manner over the whole country, that at which I was present may be




70


PHILIPPINE GOVERNMENT


provincial governor, the parish priest being permitted to
be present. For the office of gobernadorcillo the names
of three candidates were nominated by plurality vote and
sent to the Governor-General, or in outlying provinces
to the governor, who selected one for the position. Other
municipal officers were chosen directly by the convention.
The municipality was divided into barangays (barrios
or wards) of about fifty families. For their administration there were cabezas de barangay shorn of much of
their previous powers, whose principal duties were to act
as agents for the collection of the taxes for the payment
of which they were held responsible. They paid no
tribute on their own account and became members of the
principalia (principal men)-the voting and privileged
class. Originally hereditary, breaks in the family line
were filled by appointments by the Spanish officials;
eventually the position became generally elective with
service compulsory.
taken as typical of the rest. It took place in the common hall; the
governor (or his deputy) sitting at the table, with the pastor on his
right hand, and the clerk on his left,-the latter also acting as interpreter; while Cabezas de Barangay, the gobernadorcillo, and those
who had previously filled the office, took their places all together on
benches. First of all, six cabezas and as many gobernadorcillos are
chosen by lot as electors; the actual gobernadorcillo is the thirteenth,
and the rest quit the hall.
"After the reading of the statutes by the president, who exhorts
the electors to the conscientious performance of their duty, the latter
advance singly to the table, and write three names on a piece of paper.
Unless a valid protest be made either by the pastor or by the electors,
the one who has the most votes is forthwith named gobernadorcillo
for the coming year, subject to the approval of the superior jurisdiction at Manila; which, however, always consents, for the influence of
the cura would provide against a disagreeable election. The election
of the other functionaries takes place in the same manner, after the
new gobernadorcillo has been first summoned into the hall, in order
that, if he have any important objections to the officers then about to
be elected, he may be able to make them. The whole affair was conducted very quietly and with dignity."




THE SPANISH ADMINISTRATION


71


The foregoing was the system which prevailed up to
the year 1893. In that year there was promulgated the
Maura Law ' taking its name from its author, the then
Minister of the Colonies. It applied to the towns of
Luzon and the Visayan Islands in which more than one
thousand cddulas were paid. A municipal council of five,
the captain and four lieutenants, was constituted. It was
given charge of the active work of governing the municipality, such as administration of public works, etc., and
the details of taxation. In addition each of its members
was required to have special qualifications and performed
certain specified duties. These positions were honorary.
The term of office was four years. The officers, together with two substitutes, were elected by twelve delegates of the principalia. The latter was composed of all
persons who had held certain offices or who paid a land
tax of 50 pesos. The Governor-General and the provincial governor retained disciplinary jurisdiction over the
council and its individual members; the provincial council also had supervision of the municipal council. The
Mauara Law   had not really been made effective before
American occupation.
As an exception to the general plan was the organization of the city of Manila, and up to the time of the
Maura Law, of the other principal cities, such as Iloilo
and Cebu, whose government followed quite closely that
which prevailed in Spanish-America, which in turn was
derived from Spain. Founded in 1571 by Legaspi as a
Spanish city, Manila was speedily given recognition and
entitled like so many Spanish cities of the peninsula
66 By Royal Decree of May 19, 1893. See Pedro A. Paterno, El
Regimen Municipal en las Islas Filipinas; Report of the First Philippine Commission, Vol. I, pp. 43-63; De Veyra, Despujols and the
Municipal Reform, in Efemerides Filipinas, pp. 147-152; Tavera,
Census of the Philippine Islands, 1903, Vol. I, pp. 367, 368, 369;
Sawyer, The Inhabitants of the Philippines, pp. 10, 11.




72


PHILIPPINE GOVERNMENT


"Very loyal and noble city." 56    These corporations had
the usual Spanish officials, including two Alcaldes
(Mayor and Vice Mayor) and regidores (councilors);
who virtually became self-perpetuating bodies.57
~ 42. The judiciary.68-During the last years of
Spanish sovereignty, the administration of justice was
intrusted to the Audiencia Territorial (ie Manlila (Territorial Supreme Court of Manila); two superior courts
for criminal cases, the Audiencia de lo Criminal de Cebii
and the Audiencia de lo Criminal de Vigan; courts of
first instance in the provinces; and justice of the peace
courts in the municipalities.     In addition   there were
courts of special jurisdiction and a department of public
prosecution.   Two of these special courts, the treasury
and commercial courts, were finally abolished; another,
the contentious court, was made a division of the council
b6 Lecture by James A. Robertson, Early Social and Economic History of Manila, before the Philippine Academy, January 7, 1914.
57 Ziiiga, Estadismo de las Islas Filipinas, Vol. I, p. 245; Captain
Blunt, An Army Officer's Philippine Studies, p. 36; Vilas v. Manila
(1911), 220 U. S. 345, 55 L. Ed. 491.
68 See Historical Resume of the Administration of Justice in the
Philippine Islands, by Cayetano S. Arellano, Chief Justice of the
Supreme Court, Exhibit J, Report of the Second Philippine Commission, Nov. 30, 1900, pp. 225-234; Sketch compiled partly from articles written by Chief Justice Arellano and Associate Justice Torres,
of the Supreme Court, and from royal decrees, orders, and cedulas,
and various historical works, Census of the Philippine Islands, 1903,
Vol. I, pp. 389-410; Gregorio Araneta, former Attorney-General and
Secretary of Finance and Justice, in a summary statement "The Past
and Present Organization of the Courts of the Philippine Islands"
appearing as a part of the Appendix to Worcester, The Philippines
Past and Present, Vol. II, pp. 988-999; Bowring, A Visit to the Philippine Islands, 1859, Ch. IX; Judge Harvey, The Administration of
Justice in the Philippine Islands, IX Illinois Law Review, June,
1914, pp. 77-79, 1 Philippine Law Journal, Feb., 1915, pp. 334-336;
David Cecil Johnson, Courts in the Philippines-Old, New, XIV
Michigan Law Review, February, 1916, p. 300; Organic Laws of
Tribunals, extended to the Philippines, January 5, 1891.




THE SPANISH ADMINISTRATION


73


of administration; while the military, naval, and ecclesiastical courts were restricted-the military and naval to
cognizance of military offenses, and the ecclesiastical
courts to canonical matters and ecclesiastical offenses.
Appeals in some cases could be taken to the Supreme
Court of Spain, civil cases being submitted to Chamber
No. 1 of the court and criminal cases to Chamber No. 2.
Judges of the superior courts were appointed by the
Minister of the Colonies in Madrid. Late Royal Decrees
established the independence of the judges and governed
transfers, suspensions, and removals.  Judicial salaries
were meager-from 2,000 pesos to 7,000 pesos per
annum.
The Auidicncia was established in 1584; up to that date
the Governor had exercised judicial functions.59 The decree stated that the court was founded "in the interests
of good government and the administration of justice,
with the same authority and pre-eminence as each of the
royal audiencias in the town of Valladolid and the city of
Granada." The first president of the court was Governor
Santiago de Vera. The oldest document now remaining
in the office of the clerk of the Supreme Court is a judgment in a criminal case imposing the death penalty, entered in 1601. Abolished in 1589, the Audiencia was reestablished in 1596 and continued with varying offices
and functions throughout the Spanish regime. For many
years it was not only a court of justice, but a superior
council, with a variety of important legislative and executive powers as well.6~ The Governor-General was presis Under Royal Order of August 14, 1569.
60 Morga, p. 345; Recopilacion de Leyes de las Indias, lib. ii, tit.
xv, leyes xi, lviii; Census of the Philippine Islands, 1903, Vol. I, pp.
390 et seq. Royal decree of July 4, 1861, VII San Pedro, Legislacion
Ultrumarina, 38 divested the Audiencia of its administrative and legislative powers.




74


PHILIPPINE GOVERNMENT


dent of the Audiencia until 1861. As finally organized,6'
it was composed of one chief justice, two presidents of
chambers (civil and criminal branches), eight associate
justices, additional justices for vacancies (magistrados
suplentes), an attorney-general, and other officials.  It
then had some original jurisdiction, and appellate jurisdiction over the entire archipelago in civil matters and
over the province of Manila and fifteen enumerated
provinces adjacent thereto in criminal matters.
The superior criminal courts of Cebu and Vigan were
created in 1893. The Audiencia Territorial of Cebu existing since 1886 was thereupon abolished.  The personnel of each of the criminal courts consisted of a chief
justice, two associate justices, an attorney-general, an
assistant attorney-general, and a secretary.  They had
appellate jurisdiction of criminal cases coming from the
surrounding territory.
Following the separation of the executive and judicial
powers of the Alcaldes Mayores, a number of provinces
and districts were given at least one court of first instance. These were divided into three classes, designated
de entrada, de ascenso, and de tcrmlino. The courts of
first instance had both civil and criminal jurisdiction, including appellate jurisdiction from justice of the peace
courts, specified in great detail in the laws. For every
such court there was a fiscal and a clerk of court. A register of property with a recorder was also established in
each province.
Justice of the peace courts, succeeding the gobernadorcillo who had previously exercised judicial functions,
were authorized in 1885 for every pueblo. Appointments were made by the Governor-General on the recommendation of the Chief Justice. Justices of the peace re

*1 See various royal cedulas and royal orders for previous organizations.




THE SPANISH ADMINISTRATION


75


ceived no salaries; their only compensation was the fees
which the law allowed them to charge. They had jurisdiction, in their respective pueblos, in civil actions, when
the amount claimed did not exceed two hundred pesos,
and in criminal cases, over misdemeanors.
One branch of the Spanish judicial system as applied
to the Philippines, the Department of Public Prosecution,
remains to be noticed. The head of the department in
the Philippines was the Attorney-General of the Audiencia of Manila, with assistants in the Audiencia and
lower courts appointed by the Attorney-General. It was
the duty of the Department of Public Prosecution to see
to the execution of all the laws and decrees, referring to
the administration of justice, to supervise the duties of
the subordinate fiscals, to represent and defend minors or
other incapacitated persons or absentees whose rights
were in question, to preserve intact the powers and competency of the ordinary courts, to represent the government and its departments in the enforcement of the laws
and in all civil and criminal actions to which the state was
a party.
~ 43. Ecclesiastical   administration.62-Since     the
principle of the separation of church and state was unknown to Spain, it was inevitable that the same idea
should persist in a great mission like the Philippines. The
extent of church control of the civil administration is debatable.6 At least some facts are certain: The church
received financial support from the state. On different
62See generally Captain Blunt, An Army Officer's Philippine
Studies, seventh paper, p. 291; Report, First Philippine Commission,
Vol. I, Part VII; Bowring, A Visit to the Philippine Islands, Ch.
XII; Tavera, Census of the Philippine Islands, 1903, Vol. I, pp. 369,
370; Foreman, The Philippine Islands, 3rd Ed., 1906, pp. 202-208;
and numerous articles in Blair and Robertson, The Philippine Islands.
63 "The peculiar intertwining of the civil and religious in Spanish
public life, allowed ecclesiastical intervention in almost every act of




76


PHILIPPINE GOVERNMENT


occasions the supreme civil authority was vested in the
prelates. The archbishop and bishops had membership in
administrative boards. The friars were exempted from
trial for offenses, except the most heinous, in the ordinary civil courts. Moreover to the everlasting honor of
the great religious orders be it said further that their
work was not limited to religious instruction.     The missionaries, Archbishop Harty says, were men "who not
only had a knowledge of physics, philosophy, and theology, but were also architects and builders, advance
agents of civilization." Ba The spread of European customs, installation of printing presses, the teaching of
writing, instruction in the arts and trades, medical treatment, training in music, introduction of improved agricultural methods,-these are some of the benefits of clerical activity to which "the Philippine Islands owe, more
than to anything else, their internal prosperity, the Malay
population   its sufficiency  and  happiness." 64   Another
author, writing sympathetically of the religious orders,
says of themgovernment." James A. Robertson in A Short History of the Philippines. "In Spain it was impossible to find the slightest indication of
any separation between church and state; in the Philippine Islands
this union was apparently even more intimate."  T. H. Pardo de
Tavera, Census of the Philippine Islands, 1903, Vol. I, p. 361. 'The
absurdity of the assumption that the friars dominated or controlled
the Spanish government and the courts is also made manifest. Of
all the governors and other high officials at the head of affairs during
the evolution of the crisis in the Philippines, there was not one but
would properly have resented the imputation that he was not acting
on his own authority and responsibility." John R. Volz in the Editor's foreword to Captain Blunt, An Army Officer's Philippine
Studies, p. ix.
68 Archbishop Harty, The Religious Situation in the Philippines,
62 Ind., May 30, 1907, p. 1246.
64 W. Gifford Palgrave, Ulysses or Scenes and Studies in Many
Lands, Essay on Malay Life in the Philippines (1876), p. 150. See
also McKinley, Island Possessions of the United States, p. 209.




THE SPANISH ADMINISTRATION


77


"In the evangelization of the Philippines, by persuasion
and teaching, they did more for Christianity and civilization than any other missionaries of modern times. Of
undaunted courage, they had ever been to the front when
calamities threatened their flocks. In the pursuit of their
calling they have witnessed and recorded some of the
most dreadful convulsions of nature, volcanic eruptions,
earthquakes, and destructive typhoons. In epidemics of
plague and cholera they have not been dismayed, nor have
they ever in such cases abandoned their flocks. Whenever an enemy attacked the Islands they were the first to
face the shot. Only fervent faith could have enabled these
men to bear the soul-trying solitude and absence of real
companionship, to endure the hardships, and to overcome
the dangers that encompassed them. They performed
wonders in advancing the agricultural a nd industrial development of the country. They encouraged every good
trait in the natives, and when the latter responded to the
unselfish efforts lavished upon them, they always found
themselves in most friendly, harmonious, and helpful
relations with their preceptors. The friars did much, in
fact did all that could be done for education, having
founded schools for both sexes, training colleges for
teachers, the University of Santo Tomas in Manila, and
other institutions.  Hospitals and asylums attest their
charity. They were formerly, and even lately, the protectors of the poor against the rich, and of the native
against the Spaniard. They consistently resisted the enslavement of the natives. They restrained the constant
inclination of the natives to wander away into the woods
and to revert to primitive savagery, by keeping them in
the towns, or, as they said, 'under the bells.' " 6
The diocese of Manila was founded in 1578. Three
years later came the first bishop, suffragan to the arch

u Captain Blunt, id., pp. 323, 324.




78


PHILIPPINE GOVERNMENT


bishopric of Mexico. Manila was erected into a metropolitan see in 1595 by His Holiness, Clemente VIII.
The head of the ecclesiastical system was the archbishop of Manila, assisted by four bishops. Subordinate
to them were the curates or parish priests appointed to
each town. These later, in addition to their religious
duties, had extensive civil functions in the administration
of municipal government.66
66 "Of even higher authority in every village than the 'Captain' himself is the 'Cura' or parish priest.... He commonly becomes,
and that in the truest and best sense of the term, a very father to his
people, and finds in their reverence and affection motive enough to
encourage him in continuing to deserve the title." Palgrave, Ulysses
or Scenes and Studies in Many Lands, pp. 149, 150. During the investigation of the religious orders made by the Philippine Commission in 1900, Father Juan Villegas, the provincial or head of the
Franciscan friars, testified as follows as to the civil duties and powers
exercised by the members of his order in the municipalities:
"The following may be mentioned as among the principal duties or
powers exercised by the parish priest: He was the inspector of primary schools; president of the health board and board of charities;
president of the board of urban taxation (this was established lately); inspector of taxation. Previously he was the actual president,
but lately honorary president, of the board of public works. He certified to the correctness of cedulas-seeing that they conformed to the
entries in the parish books. They did not have civil registration
here, and so they had to depend upon the books of the parish priest.
These books were sent in for the purpose of this cedula taxation, but
were not received by the authorities unless viseed by the priest. He
was president of the board of statistics, because he was the only person who had any education....Under the Spanish law every
man had to be furnished with a certificate of character. If a man
was imprisoned and he was from another town, they would send to
that town for his antecedents, and the court would examine whether
they were good or bad. They would not be received, however, unless
the parish priest had his vise on them. The priests also certified as
to the civil status of persons. Every year they drew lots for those
who were to serve in the army, and every fifth man drawn being
taken. The parish priest would certify as to that man's condition...By law he had to be present when there were elections for




THE SPANISH ADMINISTRATION


79


The judicial functions of the church were represented
by the archbishop's court and the commissioner of the
inquisition. This court was made up of the archbishop,
the vicar-general, a notary, and other officials. The suffragan bishops had similar courts. These ecclesiastical
courts tried cases coming under the canon law, such as
those relating to matrimony, and ecclesiastical offenses
excepting those of an atrocious nature.67     As to the inmunicipal offices.... He was censor of the municipal budgets
before they were sent to the provincial governor.... He was
also counselor for the municipal council when that body met..
The priests were supervisors of the election of the police force..He was examiner of the scholars attending the first and
second grades in the public schools. He was censor of the plays, 
comedies, and dramas in the language of the country, deciding
whether they were against the public peace or the public morals.
These plays were presented at the various fiestas of the people. He
was president of the prison board and inspector (in turn) of the
food provided for the prisoners. He was a member of the provincial
board. Besides the parish priest there were two curates who served
on this board. Before the provincial board came all matters relating
to public works and other cognate matter. All estimates for public
buildings in the municipalities were submitted to this board. He was
also a member of the board for partitioning Crown lands. After the
land was surveyed and divided, and a person wanted to sell his land,
he would present his certificate, and the board would pass upon the
question whether or not he was the owner. This would be viseed by
the board for the purposes of taxation. When a private individual
wanted to buy Government land he would apply to the proper officer,
pay his money, and the board would determine whether the transfer
was according to law. In some cases the parish priests in the capitals
of the provinces would act as auditors. In others, where there was
an administrator only, the curate would act as auditor. Besides the
above there were other details which devolved upon the priest." Report of the Second Philippine Commission, Nov. 30, 1900, p. 25; Report of the First Philippine Commission, 1900, Vol. I, p. 57.
67 "The canon law, which the ecclesiastical courts administered both
in Spain and here, had not as such any binding force outside of the
church. However, any part of the canon law which by proper action
of the civil authorities had become a civil law stood upon the same




80


PHILIPPINE GOVERNMENT


quisition in the Philippines,68 it was under the jurisdiction of Mexico and was strictly limited and defined.
~ 44. Public finances.69-The budgets required the
approval of the Minister of the Colonies. For the financial administration of the islands there were managers of
the revenues, directly responsible to the central government, provincial officials of different classes, and municipal agents.
In 1584 the receipts and expenditures for the colony
were 33,000 pesos and 42,000 pesos, respectively.         For
the fiscal year 1896-1897 each was estimated at approxifooting as any other law of Spain. This happened in the case of the
decree of the council of Trent." De la Rama v. De la Rama (1903),
3 Phil. 34, 39. The Decretal Law of December 6, 1868, abolishing in
the Peninsula the special jurisdictions, was extended to the Philippines by a royal order of February 19, 1869, which was published in
the Gaceta de Manila on June 2, 1869. That Decretal Law contained
the following provision:
"The ecclesiastical courts shall continue to take cognizance of
matrimonial and eleemosynary causes and of ecclesiastical offenses
in accordance with the provisions of the canon laws. They shall;i1:-l
have jurisdiction over causes of divorce and annulment of marriage
as provided by the holy council of Trent; but incidents with respect
to the deposit of a married woman, alimony, suit money, and other
temporal affairs shall pertain to the ordinary courts." Quoted in De
la Rama v. De la Rama, Id., p. 40. See further as to canon law,
Walton's Civil Law in Spain and Spanish-America, pp. 43-50; and
as to ecclesiastical courts, Census of the Philippine Islands, 1903,
Vol. I, pp. 404-406, and Chief Justice Arellano, Exhibit G, Report,
Second Philippine Commission, Nov. 30, 1900, pp. 227-229.
68 See Lea, The Inquisition in the Spanish Dependencies, pp. 299 -317; J. T. Medina, El Tribunal del Santo Oficio de la Inquisicion en
las Islas; Retana, La Inquisicion en Filipinas.
69 See generally Foreman, The Philippine Islands, 3rd Ed., 1906,
Ch. XIV; Bowring, A Visit to the Philippine Islands, Ch. XXII;
Kamantigue, A Critical Study of the System of Taxation in the Philippines, Ch. II, unpublished; Report, First Philippine Commission,
Vol. I, pp. 49-56, 69-72, 76-81; Report, Second Philippine Commission, Nov. 30, 1900, pp. 94-104.




TIE SPANISH      ADMINISTRATION               81
mately 17,000,000 pesos.70 It was always difficult and
sometimes impossible to pay the expenses of the govern7 Taking figures for normal times, the estimated receipts and expenditures for the year 1894-95 were as follows:
"1. General obligations..................... P1,360,506.53
2. State..................................  65,150.00
3. Church and courts.....................  1,687,108.88
4. W ar..................................  4,045,061.84
5. Treasury..............................  823,261.95
6. Navy.................................  2,450,176.77
7. Government (gobernacidn )...........  2,220,120.98
8. Public works and institutions (fomento)  628,752.46
Total............................   P13,280,139.41
"Under the first head-general obligations-it appears that of the
P1,360,506.53 specified the sum of P118,103 was spent on the colonial
department and connected branches in Madrid; P70,822.73 on the
colony of Fernando Po, on the coast of Africa; P718,000 on pensions
and retiring allowances, and P367,000 on interest on deposits. Of
the P65,150 devoted to the state nearly the whole amount was used
toward defraying the cost of Spain's diplomatic and consular service
in the Orient, namely, in China, Japan, and the neighboring French
and British colonies. Under the third head P1,687,108.88 is charged
to church and courts; of this amount P460,315.24 was spent on the
courts, and the balance on the church, the two largest items being
P625,860 for the parochial clergy (whose salaries were P500, or
P600, or t800, or in a few cases P1,200, while the four bishops had
each P6,000, and the archbishop P12,000) and P419,680 for materials
for the ecclesiastical establishments (P360, or P500, or P600, or in a
few cases P800 being allowed to each parish). War, it will be seen,
ate up nearly one-third of the revenues, and of the enormous sum
(P4,045,061.84) provided for that department the salaries of the
officials of the administrative bureau consumed P771,043.25, while
P1,334,484.32 was spent on materials for the army and P1,997,649.27
on that body itself. Under the fifth head is the treasury, with
P823,261.95 of which P232,796 was for the maintenance of the central offices of the intendency-general, the central treasury, and the
comptrollership, and P216,244 for the provincial administrations of
the public treasury. The navy comes sixth in the list, with P2,450,176.77, of which P1,147,540.42 was for materials, and P1,349,504 for
services. The seventh head is government, with an expenditure of
P. I. Govt.-6.




82              PHILIPPINE GOVERNMENT
ment from the Philippine treasury. The deficits were met
if at all by the royal treasury of Mexico. This subsidy
P2,220,120.98, of which P272,606 was for the salaries of the Governor-General and the provincial governors and commanders, p843,735.91 for the civil guard (composed of 3,482 individuals), P969,921.92 for the maintenance of postal and other communications, and
P88,555 for the general directorate of the civil administration. The
last head is public works and institutions, costing P628,752.46, of
which P141,175.50 was for special institutions of instruction, chiefly
in Manila; P109,690 for public works (mostly in salaries), P142,365
for the general inspection of mountains, P15,575 for mines, P103,570
for the agricultural school and stations, and P37,462 on maritime
navigation and light-houses.
"The receipts of the general government in the Philippines were in
1894-95 as follows:
1. Direct  taxes.............................. P6,659,450
2. Indirect taxes (customs).................. 4,565,000
3. Receipts from monopolies.................  1,112,850
4. Lotteries.................................  873,000
5. From   state  property.......................  195,500
6. Estimated  petty  receipts...................  174,100
Total...................................13,579,900
"Of the proceeds of direct taxation, which made up one-half
(P6,659,450) of the total revenue of the general government, the
sum of P4,586,250 was collected from cEdulas, or identification certificates, of which every Filipino was required to secure one annually,
the cost ranging from P1 for the tenth class to P5 for the fifth class,
P15 for the third, and P25 for the first class, next to the cedulas the
most productive direct tax was that on commerce and industry, which
netted P1,323,000. Then followed the poll tax on the Chinese with
P482,800, after which came the tax on urban property with P110,400.
The balance was made up by P12,000 in tribute from unconquered
tribes, P35,000 from a 10 per cent tax on railway tickets, P70,000
from a 10 per cent assessment on certain salaries, and P40,000 from
a 25 per cent assessment on the premiums for the collection of urban
and industrial taxes, cedulas, and the Chinese poll tax.
"The indirect taxes or customs receipts, which aggregated P4,565,000, were composed of P3,800,000 from duties on imports, P430,000 from duties on exports, P300,000 from clearance dues, and the
remainder P35,000 for fines, etc.




THE SPANISH ADMINISTRATION


83


known as el situado 71 amounted to about a quarter of a
million pesos annually.
Certain sources of income decreased or were abolished
"Under the third head, of receipts from monopolies, stand P602,300
received from the opium contract and P510,550 from stamps and
stamped paper, making together P1,112,850.
"The government lotteries produced P873,000, all but P4,000 from
the sale of tickets.
"The receipts from state property (P195,000) include rents or products as well as sales. The largest single item was P122,000 from
forest products; the next, 145,000 from the sale of lands, and P25,000
from the sale of buildings.
"The sixth and last source of revenue is uncertain. Of the P174,000
estimated from this source, P100,000 was expected from the coinage
of money, r13,000 from what is described as indeterminate resources, "9,000 from the sale of military and naval properties, and
P30,000 surplus from the secret or special service (servicios cerrados)
fund." Report, First Philippine Commission, Vol. I, pp. 79-81. See
further Bowring, A Visit to the Philippine Islands, p. 320, for a copy
of the budget for 1859; Sawyer, The Inhabitants of the Philippines,
pp. 416, 417, for budget for 1896-7; and for a present view, Churchill
v. Rafferty (1915), XIV O. G. 383. Copies of Spanish budgets can be
seen in the Philippine General Library.
71 Felipe Govantes, a Spanish official of long service in the islands,
in his Compendio de la Historia de Filipinas (Manila, 1877), appendix 23 quoted by Dr. Tavera in his Biblioteca Filipina, 193, says:
"Many erroneously believe that the situado that came from Mexico
to the Philippines was in consequence of a deficit in the treasury of
the archipelago. We shall point out their mistake, which has been
and still is of serious consequence to the Philippines...   The
ships that carried the products of the Philippines went from Manila
to Acapulco, and in the latter port the export duties were collected on
the cargo from Manila as there was no custom-house in Manila; and
since the expenses of the Philippines were calculated in Mexico, exactly what was needed of the amount realized from the exportation
from the Philippines was transmitted, and the larger part was retained in Mexico. That which came to Manila was called the
situado. There was then no deficit, but on the contrary a considerable surplus."
This is proved to be erroneous by Professor Bourne, X Am. Hist.
Rev., January, 1905, pp. 459-461, citing numerous authorities. James




84


PHILIPPINE GOVERNMENT


in the course of time.72 Tribute, at first the principal tax,
with the advance of civil government, became limited to
recognition of vassalage by non-Christians. Forced labor
on the public works, called "polos" was abolished in 1884
A. Le Roy, XI Am. Hist. Rev., 1906, pp. 722, 723, says on the same
subject:
"Referring to the previous communications to the American Historical Review on the above subject, viz., one by Professor Edward
Gaylord Bourne (X, 459-461) and one by me (X, 929-932), I wish
now to call at' ntion to the subsequent publication in the Philippine
Islands, 1493-1898, XXVII, of the 1637 Memorial of Juan Grau y
Monfalc6n, and to acquiesce in Professor Bourne's judgment that the
data as to the Philippine budget in this document entirely prove the
case for the contention that the subsidy from the treasury of Mexico
to that of the Philippines was in net cash, and amounted to about a
quarter of a million pesos annually. At the time of my previous communication, I had never had a chance to see the Grau y Monfalc6n
memorial, which Professor Bourne had consulted in Coleccion de
Documentos Ineditos del Archivo de Indias, America y Oceania
(Madrid, 1866). Grau y Monfalc6n's statements are not only clear
enough, but the figures he adduces are conclusive on the particular
points which were under discussion in the communications referred
to above. The citations from the new and first English version of
this memorial which are specially pertinent are to be found on pages
121 and 136 to 141 of volume XXVII of The Philippine Islands,
1493-1898. This and the preceding two volumes also contain other
data corroborative as to the amount of the subsidy, the manner of its
calculation and payment, etc.
"It is still true, however, that we lack evidence of the payment of
this subsidy every year, especially throughout the eighteenth century.
The citations from various authorities down to the early part of the
nineteenth century, made by Professor Bourne in his communication
in question, create very much more than the presumption that the
subsidy became a recognized feature and that it acquired a fixed
value of 250,000 pesos annually.... There may have been,
and probably were, lapses in the practice, as there were interruptions
to the rule of annual communication by the trading galleons between
Mexico and the Philippines." See further Bancroft, Mexico, III,
676, n.
72 For historical data on this subject, see Tavera, Census of the
Philippine Islands, 1903, Vol. I, pp. 357-360.




THE SPANISH ADMINISTRATION


85


and a personal cedula tax substituted. The tobacco monopoly was given over, and to take its place, urbana and
industrial taxes were established. Monopoly of the opium
contract, the profits of the lottery, stamped paper, and
taxes on the Chinese as a class are other sources of income not continued by the American government.
Customs duties and what may be classified as internal
revenue taxes furnished the bulk of the insular revenue.
The Spanish tariff, under the royal decree of January 7,
1891, was composed of specific duties, surtaxes for harbor
improvements, the so-called ad valorem taxes on imports,
consumption taxes, miscellaneous charges, and export
duties. Discrimination in the tariff against the poor and
in favor of the rich was a striking characteristic; thus
cotton cloth and rice, the natives' dress and food paid
25.6% and 18.2% respectively, while silk and prepared
foods paid only 20.8%  and 9.4%  respectively.  The
sources of internal revenue were of five classes: The socalle(l industrial taxes; the urbana taxes; the stamp taxes;
the sale of certificate of registration (cedulas personales);
and the public domain. The industrial taxes and the
urbanla taxes together constituted practically an income
tax of roughly 5 % on the net income of persons engaged
in industrial and commercial pursuits and on the owners
of improved city property.
An analysis of expenditures proves interesting in the
light of present conditions. Thus over one-half was paid
out in salaries.7 Developmental divisions such as public
works and public instruction received scant assistance.
The army and the navy ate up half of the income. Items
which now fall on the home government such as army
and navy, diplomatic and consular service in the Orient,
the expenses of the Ministry of the Colonies, and of the


7 See Foreman, The Philippine Islands, 3rd Ed., 1906, pp. 214,'215
for itemized list of salaries.




86


PHILIPPINE GOVERNMENT


church now left to its own resources, were included.     In
other words fully seventy per cent of the income went to
sustain functions which under the American administration are not a burden on the Philippine government.
The municipalities imposed taxes according to their
necessities.74 The municipal council could farm out 7
the collection of its taxes. The annual expenses of the
municipalities were negligible. For the year 1895-1896,
the budget for the municipalities totaled approximately
2,000,000 pesos. Cedulas made up four-fifths of the revenue; public instruction was the largest item on the side
of expenditure.   The budget for the city of Manila was
74 "Taxes, constituting municipal funds, were collected as follows:
On fisheries, on bills of sale of live stock, on rentals from town properties, licenses on billiard saloons, theaters, markets, slaughterhouses, tolls on bridges and ferries, pounds for stray animals, streetlighting and cleaning; a 10 per cent surtax was also charged on the
city property tax. There were also taxes collected on agricultural
lands and certain fines, which were local in their nature and created
according to the necessities of the budget in each town....
The municipal funds were kept in the safe of the provincial government at the capital of the province, and a captain of the municipality
was allowed to keep on hand only such amounts as were necessary
to pay the running expenses of the municipal administration.
"The tax on rural property was imposed at a certain percentage on
the assessed value of the plantation or other holding, whether cultivated or not. The rate of taxation was fixed at a meeting of the
municipal council attended by the parish priest." Tavera, Census of
the Philippine Islands, 1903, Vol. I, p. 368.
76 Farming out the revenues "is a method suited only to arbitrary
governments and unenlightened peoples. It may be said in general
to consist in putting the collection of the revenues under general
rules for the determination of individual taxes, but without any
specific listing, into the hands of contractors, who are to return to the
treasury a certain net result, retaining the remainder for their profit.. In America it would not even be proposed, much less tolerated. And, indeed, any arrangement making the collector a party
in interest as to the taxes committed to him is contrary to the policy
of the law." 2 Cooley on Taxation, 3d Ed., p. 831.




THE SPANISH ADMINISTRATION


87


then 667,538.06 pesos; for the municipalities of the Province of Albay, 23,907 pesos. A town of twenty thousand
inhabitants only expended 698 pesos.76
The colony was on a silver standard with the peso as
the standard of value.7 Mexican currency was most prevalent, but the money of Spain and other countries also
circulated. A mint began operations in the Philippines
in 1861.
~ 45. Commerce78 was much restricted owing to
the Spanish policy of exclusion. The Philippines were
for a long time but a link in the trade of Spain with
Spanish America. Not until the latter part of the eighteenth century was Philippine trade opened to the world;
not until 1834 was Manila made a free port. Exports
and imports for the last five years of the Spanish regime
averaged seventy million pesos annually. The first Philippine railway line between Manila and Dagupan was officially declared open in 1892. Telegraph and cable service existed. Some fine public buildings were constructed
but permanent roads were unknown.
76 The following is a statement of the annual expenses of a pueblo
of about 20,000 people: Secretary, at P8 per month, P96; first writer,
at 16 per month, P72; two second writers, at P4 per month, P96;
third writer, at P3 per month, P36; two alguaciles, at P2 per month,
P48; total, P348. Six cuadrilleros (rural police), at P1.25 per
month, P90; desk and light, about P5 per month, P60; total, P150.
For conducting prisoners, P40; for public works (estimated), P20;
for contingent expenses (estimated), P40; for the public feast (estimated), P100; total, P200. Grand total, P698. Report, First Philippine Commission, Vol. I, p. 54.
77 See Report, First Philippine Commission, Vol. I, pp. 142-147;
Foreman, The Philippine Islands, 3rd Ed., 1906, pp. 243-260.
78 See Foreman, The Philippine Islands, 3rd Ed., 1906, pp. 219,
265-268; E. R Johnson and collaborators, History of Domestic and
Foreign Commerce of the United States, Vol. II, pp. 107-115; Conrado Benitez, The Old Philippines' Industrial Development




88


PHILIPPINE GOVERNMENT


The Spanish policy looked more to office holding than
to industrial and agricultural development.
~ 46. Education 7 began from the top and worked
toward the bottom. The College of San Jose was founded
in 1601, the University of Santo Tomas in 1619.80 The
79 See Report, First Philippine Commission, Vol. I, pp. 17-41, Vol.
II, Exhibit VI, pp. 456-476; Worcester, The Philippines Past and
Present, Vol. II, pp. 501-503; Sastr6n, La Insurreccion en Filipinas
y Guerra Hispano-Americana, 1896-1899, pp. 25-27; Artigas, La Instruccion en Filipinas.
80 "The formal foundation was completed by the year 1611, under
the name of the College of Our Lady of the Rosary; but five years
later, that name was changed by the name of the College of Santo
Tomas. 
"Royal confirmation of the authority granted to the College by the
Governor of the Islands and the Diocesan Ordinary, was obtained
from Philip IV on November 27, 1623. His letter commends the
work of the Institution as resulting 'in great advantage to the young,
to the preaching of the Gospel, and to the education of the sons of the
inhabitants.' The trained and zealous men doing such work were
naturally bent on a policy of further improvement. They aimed to
react the status of a university, with all of its powers, royal and
pontifical, and they lost no time in petitioning the King to grant them
authority and privileges to that effect.
"A brief had been issued by Pope Paul V in 1619, empowering
Dominican Colleges outside of Mexico and Lima, which the Order
had also founded, to confer university degrees for a term of ten
years. On August 28, 1624, the Royal Council of the Indies recommended that the provisions of this brief should be extended to the
provinces of Chile, New Granada, and the Philippine Islands. The
recommendation was adopted by a rbyal decree, dated September 6,
1624..
"In 1644, Philip IV, by his ambassador at Rome, petitioned the
Holy See to erect the College into a University endowed with the
same authority and perpetuity enjoyed by the Dominican Universities of Avila and Pamplona in Spain, and of Lima and Mexico in
the New World. The following year His Holiness Pope Innocent X
granted the royal petition in a notable brief, signed in Rome, 20 November, 1645.
"In 1680, the Dominicans petitioned the King (Charles II) to
favor the institution with his royal patronage and protection. This




THE SPANISH ADMINISTRATION


89


latter, with a history and traditions older than those of
any American University and with a notable career exemplified in the lives of famous graduates, became a
Royal and Pontifical University and the only institution
of higher learning in the Philippines. Connected with
Santo Tomas University as a preparatory school was the
College of San Juan de Letran. While a University of
the Philippines was proposed, the project was never
brought to fruition.81
Royal orders regarding education were issued from
time to time,82 but as no provision was made for putting
these orders into effect they all came to naught. Instruction was only given as a missionary enterprise by the
parish priests and in the church schools. The reform decrees of 1863 marked a new epoch.       Shortly after that
date secondary instruction received an impetus by the
establishment of a Normal school for men teachers 88 remaining open until 1905; the foundation of the "Ateneo
Municipal" now known as "Ateneo de Manila," a progressive institution with excellent teaching granting the
Bachelor's degree; and the beginning of the famous observatory. There was also a Nautical school of long
standing, a school of arts and trades, a school of agriculwas to add dignity to the University as well as to increase its efficiency and moral influence. The petition was granted in a royal decree, May 17 of the same year, and the royal document makes special
mention of the degrees in Theology and the arts, as being conferred
only after rigorous examinations and with commendable results."
From General Bulletin of the Manila University of Santo Tomas
(Royal and Pontifical), 1914-1915, pp. 3-6.
81 Craig, History of the University of the Philippines, in Builders
of a Nation, pp. 87-92.
82 March 21, 1634, Blair and Robertson, Vol. XLV, p. 184; June
20, 1686, Id., p. 186; Dec. 22, 1792, Id., p. 222; etc.
83Andrew W. Cain, History of the Spanish Normal School for
Men Teachers in Manila, 1865-1905, reprinted from the Philippine
Journal of Science, April, 1914, pp. 123-171.




90


PHILIPPINE GOVERNMENT


ture, a Normal school for women, a school of painting,
sculpture, and engraving, a military academy, and various private schools.
Primary instruction for Filipinos also secured a real
foothold pursuant to the royal decrees of 1863 by the extension to the Philippines of a school system originally
planned for Cuba, identical with that of Spain. There
was to be at least one school for boys and one for girls
in each municipality of five thousand inhabitants. The
number of such public primary schools reached over two
thousand with two hundred thousand pupils.84 These
figures are, however, largely superficial in their significance." The final system of public instruction while not
badly planned was never put into full operation.
84 "As early as the year 1866, when the total population of the Philippine Islands was only 4,411,261, and when the total number of
municipalities in the archipelago was 900, the number of public
schools was 841 for boys and 833 for girls, and the number of boys
attending these schools 135,098 and of the girls 95,260. And these
schools were real buildings, and the pupils alert, intelligent, living
human beings. In 1892 the number of schools had increased to 2,137,
of which 1,087 were for boys and 1,050 for girls. I have seen with
my own eyes many of these schools and thousands of these pupils.
They were not 'church schools', but schools created, supported, and
maintained by the Government." Speech of Hon. Manuel L. Quezon
in the House of Representatives, The Philippine Bill, printed in Vol.
51, No. 268, p. 18771, November 2, 1914, Sixty-Third Congress, Second Session, Congressional Record.
85Jagor, Travels in the Philippines, Eng. Ed., pp. 156, 157, describes the public schools as existing about 1875 as follows: "In all
the pueblos there are schools. The schoolmaster is paid by the Government, and generally obtains two dollars per month, without board
or lodging. In large pueblos the salary amounts to three dollars and
a half; out of which an assistant must be paid. The schools are under the supervision of the ecclesiastics of the place. Reading and
writing are taught, the writing copies being Spanish. The teacher,
who has to teach his scholars Spanish exactly, does not understand
it himself.... A kind of religious horn-book is the first that
is read in the language of the country (Bicol); and after that comes




THE SPANISH ADMINISTRATION


91


~ 47. Public order 86 was maintained by the Army,
the Guardia Civil (Civil Guard) and the Cuadrilleros
(local police). The Army under the Governor-General
as captain-general numbered about fifteen thousand men,
of which the large majority were native troops. The
Guardia Civil, begun in 1869 and patterned after a similar
body in Spain, was organized upon a military basis. Detachments scattered through the provinces acted as a force
to maintain order and apprehend criminals. It numbered
close to four thousand. The Cuadrilleros constituted the
municipal police force; in Manila this force was known
as the Guardia Veterana (veteran guard).
~ 48. Filipino participation.-Filipino and Spaniard were equal before the law. Yet in the administration of the government, the Spaniard was the ruler, the
Filipino the ruled. The people of the islands took no part
whatsoever in the making of the laws; excepting justices
of the peace and a few positions as fiscals and judges,8
held no offices of importance in the judicial service; and
in the executive department, excepting a few members of
the Christian Doctrine, the reading-book called Casayayan. On an
average, half of all the children go to school, generally from the
seventh to the tenth year. They learn to read a little; a few even
write a little: but they soon forget it again. Only those who are
afterwards employed as clerks write fluently; and of these most write
well." See also Tomas G. del Rosario in Census of the Philippine
Islands, 1903, Vol. III, pp. 576, 593-595; LeRoy, Philippine Life in
Town and Country, pp. 202-205; Report, First Philippine Commission, Vol. I, pp. 17-33. 
86 See Report of the First Philippine Commission, Vol. I, pp. 58,
59, 79, Vol. IV, pp. 33, 34; Tavera, Census of the Philippine Islands,
1903, Vol. I, p. 369; Sawyer, The Inhabitants of the Philippines, pp.
10, 11; Foreman, The Philippine Islands, 3rd Ed., 1906, p. 224; Worcester, The Philippines Past and Present, Vol. I, p. 378.
87 "Probably not more than ten Filipinos held judicial or fiscal positions, except that of justice of the peace, under Spanish rule." Former Secretary of Finance and Justice Gregorio Araneta, appendix to
Worcester, The Philippines Past and Present, Vol. II, p. 996.




92


PHILIPPINE GOVERNMENT


the consultative administrative council, filled only the lowest and subservient offices. All branches of the government were vested absolutely in Spain. In the administration of their own country, the Filipinos served merely as
useful adjuncts.88
In the long years of Spanish domination, a few abortive attempts to institute representative institutions stand
out in bold relief. Thus the Spanish republic of 1868
caused the establishment in Manila of an Assembly of
Reformists 89 including five Filipino members, with the
power to vote reforms for the colony, subject to the ratification of the home government; it accomplished nothing and soon ceased to exist. Again the Battle of Manila
Bay induced one of the last acts of Spain to retain the
loyalty of the people, the introduction of an Asamblea
88 "Although the laws recognized no difference between the various
races, nevertheless from the beginning of the nineteenth century the
Spaniards claimed superiority over the Filipinos, and so taught their
children. On the other hand, the Filipinos did not participate in the
government of their own country; it is true that some of them at
times occupied positions of importance, but these exceptions were so
rare that they merely served to emphasize the fact that the automatic
machinery of government was a thing apart and of which the natives
served merely as adjuncts. In the towns the municipal functionaries
had no choice except to convey to the people, and make them comply
with the orders of the civil and military authorities of Spain, and
especially with the wishes of the local curate." T. H. Pardo de
Tavera, Census of the Philippine Islands, 1903, Vol. I, p. 337. "All
the provincial departments and governments were filled with Peninsular Spaniards, officers who did not know the country and who were
constantly relieved whenever there was a change of Ministry. There
were very few Filipinos who secured positions as officers in the army
and in the civil administration, or as judges and prosecuting attorneys. In the Administrative Council, a few Filipinos, who were
noted more for their riches than for their learning, were ultimately
nominated or appointed as members; but such positions were gratuitous, and besides that body was purely a consultative one." Mabini,
La Revolucion Filipina, p. 24.
89 Foreman, The Philippine Islands, 3rd Ed., 1906, pp. 362, 363.




THE SPANISH ADMINISTRATION


93


Co.sulltativa (Consultative Assembly) o into the scheme
of government. This was announced in a decree by the
Governor-General dated May 4, 1898, naming eighteen
members "representative of Filipino leadership in professional and commercial affairs" as "Counsellors." The
purpose of the Consultative Assembly, as given in the decree organizing it, was to "deliberate and report to the
Governor-General upon matters of political, governmental, or administrative character upon which the said
superior authority may deem it proper to consult them."
It was given the faculty of "placing before the GovernorGeneral the advisability of measures affecting the interests of the towns, always provided that it does not invade
the functions of other organizations nor infringe the
laws." On May 28, the Assembly held its first meeting,
which consisted principally of the reading of the address
of Governor-General Agustin and of the manifesto in reply of Pedro A. Paterno. A committee on rules reported
and another committee spent some time in drawing up a
scheme of Philippine government which virtually meant
autonomy. By June 13th, its futility as an active organization had been proved.
More noteworthy than either the Assembly of Reformists or the Consultative Assembly was the Filipino representation in the Spanish Cortes.91
Le Roy, The Americans in the Philippines, Vol. I, pp. 193, 196;
Foreman, The Philippine Islands, 3rd Ed., 1906, p. 438; Captain
Blunt, An Army Officer's Philippine Studies, p. 149; Sastr6n, La
Insurreccion en Filipinas y Guerra Hispano-Americana, 1896-1899,
pp. 434, 435. See further Calder6n, Mis Memorias sobre la Revolucion Filipina, pp. 63-65 for copy of the decree and list of members.
91 See Blair and Robertson, The Philippine Islands, Vol. LI, pp.
299-297. The preliminary note thereof reads: "The account of the
first two Cortes is drawn largely from notes made by James A. Le
Roy from Diario de la sesiones de las Cortes generales y extraordinarias, and other sources...  For the first Cortes see also
Montero y Vidal, Historia General, ii, pp. 388-390, 392, 396-398, 400 -



94


PHILIPPINE GOVERNMENT


Three times in their history have the Philippines had
such representation in the Cortes, namely for the years
1810-1813, 1820-1823, and 1834-1837. The first two
periods were those during which the Spanish constitution
was effective, while in the last instance the Cortes decided
that representation in that body should be discontinued.92
"In all three periods, one cannot point to any single great
measure that was enacted solely at the initiative of the
Philippine representatives (unless with the possible exception of the suppression of the Acapulco galleon) and
indeed, not to a great many in which they took part." 98
In the first period due to the distance and the impossibility of regularly appointed delegates reaching Spain in
time for the opening of the session, two substitutes were
designated for the Philippines from residents of the
islands then in the peninsula; meanwhile a representative,
Ventura de los Reyes, was duly chosen by the central
board created for this purpose by the Royal Decree of
May 6, 1810, and set out immediately for Spain.       The
two substitutes took but little part in affairs; Delegate
Reyes, on the other hand, despite his seventy years, was
on the whole an active representative.9   Nine new depu409, 411-413, 422-435, and Guia oficial de Espaiia, 1813, pp. 21, 22,
where the Philippine deputies are named. For the second Cortes, see
also Montero y Vidal, ut supra, ii, pp. 444-452, 457-462, 476-481. For
the third Cortes, see Montero y Vidal, ut supra, ii, pp. 544, 545, 552 -560, 563-573; and Filipinas y su representacion en Cortes (Madrid,
February 8, 1836), which although published anonymously is by
Camba." Also for the second and third periods, Mariano Ponce,
Ferdinand VII and the Filipino Delegates, in Efemerides Filipinas,
pp. 88-91; and for sources, Kalaw, Documentos Constitucionales
sobre Filipinas, first part and files.
2 See Tavera, Census of the Philippine Islands, 1903, Vol. I, pp.
322, 323; Ponce, Efemerides Filipinas, pp. 88-91; Kalaw, Documentos Constitucionales sobre Filipinas, first part, for historical data.
98 LI Blair and Robertson, p. 280.
H See Kalaw, supra, pp. 13-16, 21, quoting from Montero y Vidal,
Historia de Filipinas.




THE SPANISH ADMINISTRATION


95


ties with three substitutes had been elected before notice
of the suppression of the constitution reached Manila.
In the session of the Cortes for 1820-1821, the colony
was again represented by two substitutes. Later after the
seating of Vicente Posada as a regularly elected representative from the Philippines had been contested, at the
first preliminary meeting of the special session, held October 1, 1822, Francisco Bringas y Taranco, ex-alcalde
mayor of Ilocos, the deputy elect for Nueva Segovia,
Manuel Saenz de Vizmanos, senior accountant of the
Tribunal de Cuentas of the Philippines, Posada and one
other, name unknown,95 presented their credentials, which
were approved on October 3rd, although Posada was
again contested. Complaint was made that the Philip5 Foreman, The Philippine Islands, 3rd Ed., 1906, p. 362, states
that seventeen delegates were elected; he names eight.  Ponce,
Efemerides Filipinas, pp. 88-91, names all seventeen: Vicente Posada,
Eulalio Ramirez, Anselmo Jorge Fajardo, Roberto Pimentel, Esteban
Marquez, Jose Florentino, Mariano Pimpin, Felipe Urbano de Leon,
Camilo Pividal, Francisco Bringas, Jos6 Pedroso, Juan Bautista
Casal, Cristobal Padilla, Mariano de los Reyes, Domingo Fernandez,
Manuel Saenz de Vizmanos and Jose Azcarraga. Blair and Robertson in Vol. LI, p. 292, note 274, say that this is confusing the electors
with the representatives.  At least only three whose names are
known proceeded to Spain.
Ponce, loc. cit., quotes and describes the election rules of January
26, 1821, as follows:
"Upon this document were stamped these words, which are worthy
of being remembered even in these days:
"'The Delegates of the Cortes, and members of the provincial Deputation should be chosen in this capital of the province by the electors
of all its Districts, according to article 78 of the Constitution; and
solely with the object in view of facilitating the elections, the Council
has for such purpose only made the most convenient division of the
territory within its jurisdiction in the electoral Provinces, and has
designated in each one of them the city or town where the electors
of the Districts should assemble to elect the Delegates. But, as this
method depends purely upon chance and is designed to spare the
electors the responsibility that its fate will depend in great measure




96


PHILIPPINE GOVERNMENT


pines had elected but four deputies instead of twentyfour.
In the last period the election for the Philippine representatives (March 1, 1835) resulted in the choice of General Andres Garcia Camba, and the lawyer Juan Francisco Lecaroz-the first a resident of Manila and the
second the Madrid agent for the Manila Ayuntamiento.
On the 24th of November of the same year Camba and
Lecaroz took the oath, the former being placed on the
committee on etiquette. On March 9, 1837, the elections
at Manila    resulted   in  Camba    and   Luis   Prudencio
Alvarez y Tejero, formerly of the Manila Audiencia, and
a resident of Manila for thirteen years, being elected.
The latter arrived in Spain after the passing of the law
excluding the Philippine representatives from the Cortes.
After 1837 the Philippines had no representation in the
Cortes. But repeated attempts to revive the right were
upon their success in choosing the right Delegates, and never losing
sight of this important consideration, they should stop their ears to
the suggestions of the enemies of the representative system adopted
by our Catholic Monarch; to the persuasion of the authorities; to the
voice of love and the spur of ambition and interest, in order to discover from the heights of impartiality who of the citizens native or
domiciled in the Philippines are the best fitted to represent the nation
on account of their merit and virtue, their learning and their disinterested love for the country and the Constitution; of distant parts,
the expenses and inconveniences in having to move from Manila, it
cannot be said that they alter, vary, nor modify in any manner the
circumstances which should concur in the Deputies to the Cortes and
members of provincial Deputies, according to articles 91 and 330 of
the Constitution.'
"These Instructions provide that a delegate be elected for every
seventy thousand souls; on this basis, it came out that 24 propietarios
(delegates proper) and 8 suplentes (substitutes) were those that
were to be elected for the whole electoral province of the Philippines, to wit: 9 propietarios and 3 suplentes for Manila; 6 of the
former and 2 of the latter for Nueva-Segovia; 4 and 1 for NuevaCAceres, and 5 and 2, respectively, for Cebii."




THE SPANISH ADMINISTRATION


97


made. On May 25, 1869, an amendment granting parliamentary representation to the Philippines was presented
by Julian Pellon y Rodriguez. The proposed Republican
constitutions of 1872 and 1873 were favorably inclined to
the privilege. Again on March 3, 1890, the Deputy
Francisco Calvo Mufioz submitted an amendment to the
bill reforming the Electoral Law then under discussion,
authorizing three deputies to the Cortes from the islands,
and establishing conservative conditions to guarantee the
wealth and culture of the voters. 6  Notwithstanding
Ramos Calder6n, the chairman of the committee on elections, and Manuel Becerra, the Minister of the Colonies,
spoke in favor of the amendment, it was withdrawn without a vote. As a last effort, through the activities of the
Filipino Association of Madrid and the review "La
Solidaridad," fifty-two petitions97 praying for the restoration of parliamentary representation for the Philippines, were presented to the Cortes by the Deputy Emilio
Junoy in its session of February 21, 1895. The same
deputy shortly after submitted a bill, providing for thirtyone deputies and eleven senators for the Archipelago,
which received scant consideration from the government.
The Filipino prayer eloquently stated by Del Pilar was
"in exchange for the loyalty of so many generations, in
exchange for so much blood shed for Spain, the present
generation does not ask for anything which will mean a
sacrifice to the metropolis of its ideals, nothing which
should impose any burden on its interests at all; it does not
ask anything but a little consideration, it only asks to have
its voice heard, that it be allowed to express its necessities
9 See a Volume entitled "Felipinas en las Cortes," speeches delivered in the Congress of Deputies on the Parliamentary Representation of the Philippine Archipelago, with an excellent prologue by
Marcelo H. del Pilar.
97 Described, and quoted from by Ponce, Our Representation in the
Cortes, Efemerides Filipinas, pp. 185-187.
P. I. Govt.-7.




98


PHILIPPINE GOVERNMENT


by means of representatives freely elected by the vote of
the interested parties." 98 But the grant of what to the
Filipinos appeared as a natural right, failed. And the
failure brought an end to peaceful agitation, caused minor
revolts, and eventually came to be one of the fagots Awhich
kindled the national conflagration.
~ 49. Judgment.-Nothing is easier than to stand
on the summit of present knowledge and there ruthlessly
and uncharitably condemn the mistakes of a past era. It
is a common practice for some American writers, witl
superficial knowledge or exaggerated patriotism, to exalt
American superiority by deepening Spanish inferiority.
American success requires no such artificial bolstering to
perpetuate its accomplishments. Spanish failure, if such
there be, at least merits a decent trial and a just verdict.
Indeed the ideals existent during the height of Spanish
power are so contrary to those of the present age that a
fair comparison is impossible. One must in all justice remember that Spain could give no more than she herself
possessed. In a state of decline herself, Spain could not
govern the Philippines any more wisely, until she had cut
out the decay of the home government. The point of
view almost predetermines the conclusion. The eminent
Spanish historian, Colmeiro, well says in self-defense,
"We have dissimulated neither the faults nor the errors
committed by the Spanish in America-from which the
peoples who founded colonies in those days were not exempt, because they had their roots in the age and in the
system. But those authors are writing with passion, and
merit little credence, who paint us as ferocious wild
beasts, or at least as barbarians thirsting for blood and
gold, and forgetting good works." 99
98 See note 96.
99 Historia de la Economia Politica en Espaia, 1863, II, 421, 422.
With analogous result Spanish achievement in the Americas is sym



THE SPANISH ADMINISTRATION


99


The foregoing is not intended as apologia to gloss over
Spanish   incompetency.    Nor should it be taken      for
granted that there were not defects-grave defects-in
the Spanish administration.     Even an author such as
Captain Blunt who would paint as bright a picture as
possible, states-"That the Filipino Colonial government,
according to Anglo-Saxon standards, was defective in its
machinery is a fact. That many of its officials may have
been  corrupt is beyond     question." 100   Spain  stands
clarged in the first instance with gross negligence for not
having adopted the progressive methods of other countries. Professor Keller of Yale University, coindensing
the leading   secondary  authorities on   the  Philippines,
comes to the conclusion that "for decades before the end
of Spanish domination, the government was plainly and
sordidly mercenary, corrupt, and inefficient, and it takes
an extremely benevolent observer to detect any more than
ephemeral and accidental superiorities in its operations,
from the period immediately succeeding the conquest up
to 1898. It may have been relatively no worse at the outset than many of its contemporaries, but it showed no
tendency to adapt itself to new   conditions and thus incurred the reprehension and contempt of those nations
pathetically analyzed in chapters XIII, XIV, XV, Bourne, Spain in
America, concluding as follows:
"Without a prolonged and detailed discussion it would be difficult
to reach a general conclusion on the government and administration
of Spanish-America. Severe judgments have been passed upon it.
Justice was slow and uncertain; the evidence of financial corruption,
especially of bribery of judges, all, the general impression derived'
from the narratives of English residents in New Spain and other
early travellers is that they observed no particular contrast between
governmental conditions in Europe and America. It is the opinion
of the writer that, all things considered, Spanish-America was quite
as well governed as was Spain, and was, on the whole, more prosperous." p. 242.
100 An Army Officer's Philippine Studies, p. 37.




100


PHILIPPINE GOVERNMENT


which at least professed more modern ideals." 101 The
most common indictment is that of corruption, particularly in the branch where integrity should be the prime
essential, the judiciary. "The foulest blot upon the Spanish Administration in all her former colonies was undoubtedly the thorough venality of her infamous Courts
of Justice." "   Yet corruption was undoubtedly the exception and not the rule, as witnesseth the testimony of
the German Jagor: "I had also the good fortune to fall
in with a model Alcalde, a man of good family and of
most charming manners; in short, a genuine caballero.
To show the popular appreciation of the honesty of his
character, it was said of him in Samar that he had entered the province with nothing but a bundle of papers,
and would leave it as lightly equipped." 103 A further
count in the indictment against Spain is excessive centralization, with a plethora of official parasites, yet with no
representative institutions in which the Filipinos might
participate or voice their needs.1~      Whatever be the
101 Keller, Colonization, p. 358.
102 Sawyer, The Inhabitants of the Philippines, p. 24. Enlarged
upon in chapters IV and V of the same work. Pinto de Guimares
wrote in the Paris Review of Reviews: "The only ambition of the
Spanish officials in these islands was to make as large fortunes as
possible during their terms of from three to six years' service, and
then return to Spain to escape the curses of the natives. The notorious General Weyler was three years Governor-General of the Philippines at an annual salary of $40,000. Weyler, after disbursing large
sums for personal expenses and generous subscriptions to various
public works and charities, returned to Spain with a fortune estimated by his personal intimates at from $2,500,000 to $3,000,000."
Hubert Howe Bancroft, The New Pacific, p. 249.
108 Travels in the Philippines, Eng. Ed., p. 89.
104 "The most prominent defects in this scheme of government
were: (1) The boundless and autocratic powers of the GovernorGeneral; (2) the centralization of all governmental functions in Manila; (3) the absence of representative institutions in which the Filipinos might make their needs and desires known; (4) a pernicious




THE SPANISH ADMINISTRATION


101


judgment on these charges a more serious allegation
which, according to all impartial critics stands proved, is
that tlhe Spanish government took the substance of the
people in the form of taxes and tribute, used the contributions for the benefit of the governing class, and gave no
equivalent to the governed in the form of social improvement or economic development. Says Jagor, "The crown
itself, as well as its favourites, thought of nothing but extracting the most it could from the colony, and had
neither the intention nor the power to develop the natural
wealth of the country by agriculture and commerce." 10
Says Reinsch, "The Spanish government in the Philippines degenerated into a mere taxing machine, totally unproductive in its character, since practically none of the
funds collected from taxation found their way into internal improvements." 106 Says Tavera, "The Philippines
were for Spain and for Spain alone." 106 Yet even
against such reliable authorities as Jagor, Reinsch,
Tavera, and others it is but fair to state that the declining years of Spanish sovereignty saw increasingly larger
sums set aside for public works and public instruction.
It is proper to acknowledge freely the more than
counter-balancing merits 107 of the Spanish administrasystem of taxation; (5) a plethora of officials who lived on the
country and by their very numbers obstructed, like a circumlocution
office, the public business they professed to transact; (6) division of
minor responsibilities through the establishment of rival boards and
offices; (7) the costliness of the system and the corruption it bred;
and (8) confusion between the functions of the state and the functions of the church and of the religious orders." Report of the First
Philippine Commission, pp. 81, 82.
1e5 Travels in the Philippines, Eng. Ed., p. 16.
106 World Politics, p. 321.
106a 174 No. Am. Rev. Jan., 1902, p. 73.
17 See generally, Blunt, An Army Officer's Philippine Studies,
Second paper; Sastron, La Insurreccion en Filipinas y Guerra Hispano-Americana en el Archipielago, Ch. 2.




102


PHILIPPINE GOVERNMENT


tion. In the first place, the Spanish rule was generally
a mild one, partaking of a patriarchal character.108 The
scandalous cruelties of South America were not perpetrated. Unlike North America, the native races were
not only not extirpated, but increased many fold. "While
the colonies of other European peoples regularly caused
the extirpation of the barbarous natives wherever they
encountered them, the Spaniards succeeded not only in
preserving them but also in converting and civilizing
them, besides fusing them    into strong mixed races." 109
The governors and the governed married, mingled socially, and worshipped together.1~ Negatively, slavery
108Jagor, Travels in the Philippines, Eng. Ed., p. 39; Manuel L.
Quezon, Resident Commissioner to the United States, Hearings before the Committee on the Philippines, United States Senate, Sixtythird session, pp. 253, 254.
109 Wilhelm  Roscher, Kolonien, Kolonial Politik und Auswanderung, 1885, Chapter on the Spanish Colonial System, translation by
Professor Bourne, pp. 7, 8.
110 Sir John Bowring, who was long Governor of Hongkong, was
impressed with the absence of caste: "Generally speaking, I found a
kind and generous urbanity prevailing,-friendly intercourse where
that intercourse had been sought,-the lines of deniircation and separation less marked and impassable than in most oriental countries.
I have seen at the same table Spaniard, Mestizo and Indian-priest,
civilian, and soldier. No doubt a common religion forms a common
bond; but to him who has observed the alienations and repulsions of
caste in many parts of the eastern world-caste, the great social
curse-the binding and free intercourse of man with man in the Philippines is a contrast worth admiring." A Visit to the Philippine
Islands, 1859, p. 18. "I doubt if there was any colony in the world
where as much intercourse took place between the governors and the
natives, certainly not in any British colony, nor in British India,
where the gulf ever widens. In this case, governors and governed
professed the same religion, and no caste distinctions prevailed to
raise a barrier between them. They could worship together, they
could eat together, and marriages between Spaniards and the daughters of the native landowners were not unfrequent. These must be
considered good points, aild although the general corruption and in



THE SPANISH ADMINISTRATION


103


and barbarous practices were eradicated. Affirmatively
and above all, Latin civilization was implanted. This
found its principal avenues through the results of
Christianity; the unifying influence of a central administration; modern laws; education, although not universal; an increased commerce; freedom for women far in
advance of other Oriental countries; "   the introduction
of staple agricultural products; and contact with the outer
world.
Comparison with the Portuguese and Dutch Colonies,
with India, and with the peasants of Europe of the same
time have been made to the advantage of the Philippines.1s The famous French explorer of the Pacific, La
Perouse, who was in Manila in 1787, wrote:        "Three
million people inhabit these different islands, and that of
Luzon contains nearly a third of them.      These people
seemed to me no way inferior to those of Europe; they cultivate the soil with intelligence, they are carpenters, cabinet-makers, smiths, jewelers, weavers, masons, etc. I have
gone through their villages and I have found them kind,
hospitable, and affable." ll  Coming down nearly a generation later, the Englishman Crawfurd, the historian of
eptitude of the administration was undeniable, yet, bad asit was, it
must be admitted that it was immeasurably superior to any government that any Malay community had ever established." Sawyer,
The Inhabitants of the Philippines, pp. 12, 13.
11 "It is perfectly safe to say that in no other part of the Orient
have women relatively so much freedom or do they play so large a
part in the control of the family or in social and even industrial
affairs.... There seems every reason for ascribing this relative improvement in the position of woman in the Philippines as compared with surrounding countries in the Orient to the influence of the
Christian religion." Le Roy, Philippine Life in Town and Country,
p. 49.
112 See E. G. Bourne, Historical Introduction to Blair and Robertson, The Philippine Islands, Vol. I, pp. 70-73.
113 Voyage de la Perouse autour du Monde, Paris, 1797, ii, p. 347.




104


PHILIPPINE GOVERNMENT


the Indian Archipelago, who lived at the court of the Sultan of Java as British resident, said: "It is remarkable
that the Indian administration of one of the worst governments of Europe, and that in which the general principles of legislation and good government are least understood,-one too, which has never been skillfully
e::ecuted, should, upon the whole, have proved the least
injurious to the happiness and prosperity of the native inhabitants of the country. This, undoubtedly, has been
the character of the Spanish connection with the Philippines, with all its vices, follies, and illiberalities; and the
present condition of these islands affords an unquestionable proof of the fact. Almost every other country of
the Archipelago is, at this day, in point of wealth, power,
and civilization, in a worse state than when Europeans
connected themselves with them three centuries back. The
Philippines alone have improved in civilization, wealth,
and populousness. When discovered most of the tribes
were a race of half-naked savages, inferior to all the great
tribes, who were pushing, at the same time, an active commerce, and enjoying a respectable share of the necessaries
and comforts of a civilized state. Upon the whole, they
are at present superior, in almost everything, to any of
the other races." 1  The German naturalist Jagor, who
visited the Islands in 1859-1860, wrote: "Assuming the
truth of the above sketch of pre-Christian culture, which
has been put together only with the help of defective
linguistic sources, and comparing it with the present, we
find, as a result, a considerable progress, for which the
Philippines are indebted to the Spaniards." m5 The Aus114 History of the Indian Archipelago, etc., by John Crawfurd,
F. R. S. Edinburgh, 1820, Vol. ii, pp. 447, 448.
11 Travels in the Philippines, Eng. Ed., p. 151.




THE SPANISH ADMINISTRATION


105


trian professor, Ferdinand Blumentritt wrote in "La
Solidaridad" of October 15, 1899, to this effect: "If the
general condition of the civilization of the Tagalos,
Pampangos, Bicoles, Bisayans, Ilocanos, Cagayanes, and
Sambales, is compared to the European constitutional
countries of Servia, Roumania, Bulgaria and Greece, the
Spanish-Filipino civilization of the said Indian districts
are greater and of larger extent than of those countries."
Finally, writing from historical perspective, the foremost
American scholar on the Philippines gives the following
resume of the results of the Spanish administration:
"The Spaniards did influence the Filipinos profoundly,
and on the whole for the better. There are ways, indeed,
in which their record as a colonizing power in the Philippines stands to-day unique in all the world for its benevolent achievement and its substantial accomplishment of
net progress. We do not need to gloss over the defects
of Spain, we do not need to condone the backward and
halting policy which at last turned the Filipinos against
Spanish rule, nor to regret the final outcome of events, in
order to do Spain justice. But we must do full justice
to her actual achievements, if not as ruler, at any rate as
teacher and missionary, in order to put the Filipinos of
to-day in their proper category." l6 Frenchman, Englishman, German, Austrian, American, not to mention
Spanish and Filipino writers, agree in a deserved tribute
to the work of Spain in the Philippines.
The natives of the Philippines, after over three hundred years of Spanish rule, emerged far in advance of
their pre-Spanish culture. Materially, they had increased
in numbers from about half a million in 1591 to nearly


116 Le Roy, Philippine Life in Town and Country, 1905, pp. 6, 7.




106


PHILIPPINE GOVERNMENT


seven million at the opening of the twentieth century,117
and to an unascertainable degree in economic and agricultural conditions. Intellectually, they had improved until
some had acquired advanced learning and the general
literacy was fair. Spiritually, they had acquired the blessing of a common faith. All this and more is the debt
which the Filipino people owe to Spain.


117 GROWTH OF POPULATION.


Year  Population
1591     667,612
1735     837,182
1799   1,502,574
1800   1,561,251
1808   1,741,234
1812   1,933,331
1815   2,052,994
1817   2,062,805
1819   2,106,230
1829   2,593,287
1840   3,096,031
1845   3,434,007
1848   3,745,603
1850   3,857,424
1858   4,290,371
1870   4,712,006
1876   5,501,356
1877   5,567,685
1885   5,839,383
1887   5,984,727
1891   6,252,957
1893   6,333,584
1894   6,490,585
1899   6,703,311
1903   6,987,686
(7,635,426)
1916   8,000,000


Per cent of
Annual
Authority             Increase
Encomiendas or slave holdings.
(Church census)..............
(Buzeta).....................
Zufiiga.......................  3.9
Cedulas (e. g. poll tax)........  1.4
Ceclulas  "        "   "........  2.6
Cedulas        "........   2.0
Cedulas   "        "......       0.2
Cedulas        "......   2.1
Church.......................   2.1
Local  Officials................  1.6
Buzeta.......................   2.1
A renas.......................  2.9
Buzeta.......................    1.5
Bowring.....................     1.8
Guia  Oficial...................  0.8
Church......................  2.6
Census.......................  1.6
Church.......................  1.0
Census.......................    1.2
Guia  Oficial...................  1.1
Guia  Oficial...................  1.8
Church.......................  2.5
Father  Algue.................  0.7
Census.......................    1.2
Estim ate.....................


See Wright, A Handbook of the Philippines, Appendix, p. 381.




THE SPANISH ADMINISTRATION


107


REPRESENTATIVE AUTHORITIES.
Report of the First Philippine Commission, Vol. I., pp.
17-82, 130-136, 142-147; Vol. II, pp. 456-476.
Chief Justice Arellano, Historical Resume of the Administration of Justice in the Philippine Islands, Report
of the Second Philippine Commission, November 30,
1900, Exh. J, pp. 225-241.
Chief Justice Arellano, and Justice Torres, Census of
the Philippine Islands (1903), Vol. I., pp. 389-410.
Trinidad H. Pardo de Tavera, Census of the Philippine Islands (1903), Vol. I., especially pp. 309-337,
357-370.
Blair and Robertson, The Philippine Islands, Vol.
XVII, pp. 155, 156, 285-312; Id., Delgado, Historia,
1751, pp. 314-322; Id., Sinibaldo de Mas, Informe sobre
el estado de las Islas Filipinas en 1842, pp. 322-327; Id.,
Montero y Vidal, Archipielago Filipino, 1866, pp. 328
ct seq.; Vol. XXX, Abreu, Extracto Historial, 1736, pp.
31, 32; Remarks on the Philippine Islands, 1819-1822,
by an Englishman, Vol. LI, pp. 106-108, 121; Vol. LI pp.
279 et seq.
Austin Craig, The Former Philippines thru Foreign
Eyes (1916).
Apolinario Mabini, La Revolucion Filipina (1902),
Chs. II., IV.
Marcelo Martinez Alcubilla, Diccionario de la Administracion Espanola.
Miguel Martinez Berriz, Diccionario de la Administracion de Filipinas.
Sir John Bowring, A Visit to the Philippine Islands
(1859).
Fedor Jagor, Travels in the Philippines (1875), English translation.
Frederick H. Sawyer, The Inhabitants of the Philippines (1900).




108


PHILIPPINE GOVERNMENT


John Foreman, The Philippine Islands, 3rd Ed., 1906.
Captain J. Y. Mason Blunt, An Army Officer's Philippine Studies, together with the introduction by John R.
Volz, (1912).
Albert Edward McKinley, Island Possessions of the
United States (1907), Ch. VIII.
Albert Galloway Keller, Colonization (1908), pp.
341-364.
James A. Le Roy, The Americans in the Philippines
(1914), Chs. I., II.
Walton's Civil Law in Spain and Spanish-America
(1900).
Charles Sumner Lobingier, Modern Civil Law (1912).
Teodoro M. Kalaw, Documentos Constitucionales sobre
Filipinas (1915), first part.
Jaime C. de Veyra and Mariano Ponce, Efenmerides
Filipinas (1914), pp. 88-91; 147-152; 185-187.
Manuel Artigas y Cuerva, La Instruccion en Filipinas
(1915).
Henry Charles Lea, The Inquisition in the Spanish
Dependencies (1908), pp. 299-317.
Edward Gaylord Bourne, Spain in America (1904).
David P. Barrows, The Governor-General of the
Philippines under Spain and the United States, XXI.,
American Historical Review, January, 1916, pp. 288-299.




CHAPTER 4.


THE REVOLUTIONARY GOVERNMENT.
1 50. Historical setting.
51. Causes of revolutions against Spain.
52. Desire for independence.
53. Rise of Philippine nationality.
54. Causes of revolution against the United States.
55. The dictatorial government.
56. Course of events under the revolutionary government.
57. Parties.
58. The dictator and president.
59. Cabinets.
60. Foreign delegates.
61. The revolutionary congress.
62. The Malolos constitution.
63. Governmental activities.
64. Class of government.
65. Character of government.
~ 50. Historical setting.-There have been a large
number of local insurrections in the Islands.1     In 1872 2
1"The political revolution of the Philippines is of recent origin.
It may be said that its formation began only from the opening of the
Suez Canal which was inaugurated in November, 1869. The previous uprisings were caused by grievances or harm inflicted to a certain locality or to specified persons and not for the necessity of political reforms generally felt throughout the country. For this reason,
they never went beyond mere local disturbances." Mabini, La Revoluci6n Filipina, Ch. II, quotation at p. 7. See generally for x description of events in the different insurrections, Foreman, The Philippine Islands, 3rd Ed. (1906), Chs. XXII, XXIII, XXIV, XV,
XXVII. For a Spanish view of the insurrections, see "La Insurreccion en Filipinas y Guerra Hispano-Americana en el Archipielago por
Manuel Sastron."
8 See Artigas, Los Sucesos de 1872; Mabini, La Revolucidn Filipina, pp. 15-19.
109




110


PHILIPPINE GOVERNMENT


came a revolt in Cavite Province, which failed at once,
but which had far reaching results because of a revival
on a larger scale in 1896.8 This later uprising was temnporarily checked by the "Treaty of Biak-na-bato." 4       Its
8 See Mabini, La Revolucion Filipina, Ch. VIII.
4Aguinaldo in his Reseiia Veridica de la Revolucion Filipina
(True Review of the Philippine Revolution), published at Tarlac on
September 23, 1899, says of the treaty: "Don Pedro Alejandro
Paterno (who was appointed by the Spanish Governor-General sole
mediator in the discussion of the terms of peace) visited Biak-nabat6 several times to negotiate terms of the treaty, which, after negotiations extending over five months, and careful consideration had
been given to each clause, was finally completed and signed on December 14, 1897, the following being the principal conditions:
"1. That I would, and any of my associates who desired to go with
me, be free to live in any foreign country. Having fixed upon Hongkong as my place of residence, it was agreed that payment of the indemnity of $800,000 (Mexican) should be made in three instalments;
namely $400,000 when all the arms in Biak-no-bat6 were delivered to
the Spanish authorities; $200,000 when the arms surrendered amounted to eight hundred stands; the final payment to be made when one
thousand stands of arms shall have been handed over to the authorities and the Te Deum sung in the Cathedral in Manila as thanksgiving for the restoration of peace. The latter part of February was
fixed as the limit of time wherein the surrender of arms should be
completed.
"2. The whole of the money was to be paid to me personally, leaving the disposal of the money to my discretion and knowledge of the
understanding with my associates and other insurgents.
"3. Prior to the remainder of the insurgent forces evacuating Biakna-bat6 Captain-General Primo de Rivera should send to Biak-nabat6 two generals of the Spanish army to be held as hostages by my
associates who remained there until I and a few of my compatriots
arrived in Hongkong and the first instalment of the money payment
(namely, $400,000) was paid to me.
"4. It was also agreed that the religious corporations in the Philippines be expelled and an autonomous system of government, political
and administrative, be established, though by special request of General Primo de Rivera these conditions were not insisted on in the
drawing up of the treaty, the general contending that such concessions would subject the Spanish government to severe criticism and




THE REVOLUTIONARY GOVERNMENT


111


recrudescence was made possible by the germination of
the seeds of discontent in the Islands, by the activities
of "La Junta Patriotica" at Hongkong, and by the return
of Aguinaldo and thirteen companions on an American
vessel on May 19, 1898.
~ 51. Causes of revolutions against Spain.-The
Filipino viewpoint, and not a foreign interpretation 6 of
what the Filipinos should have asked for and been contented with, is here essential.  Primarily, in the words of
Dr. Apacible, the revolution "was an uprising devoid of
every feeling of hatred and revenge toward Spain, the
country that we respected and loved; it was a revolt
against her bad government." 8 And this, Commissioner
Quezon says, can be excused, because "we all know that
Spain herself had, at that time at least, a poor system of
government.    So that she just transplanted to the Philippine Islands the wrongs of her own system." 7
Jose Rizal in his "The Philippines a Century Hence"
even ridicule." Quoted in Robinson, The Philippines: The War and
The People, pp. 33, 34, Notes; Wildman, Aguinaldo-A Narrative of
Filipino Ambitions, p. 46. Negotiations as told Foreman by Pedro
Paterno, the mediator, given in Foreman, The Philippine Islands, 3d
Ed. (1906) pp. 395-399. Treaty described by General Greene in
Senate Document 62, 55th Cong., 3d Sess., p. 431; by Consul Wildman, U. S. Consul at Hongkong, Id., p. 337; by Felipe Agoncillo, Id.,
pp. 230, 231; and by Calder6n, Mis Memorias sobre la Revolucion
Filipina, pp. 9-18. Primo de Rivera and other Spanish authorities
have denied that any promises as to reforms in the government were
made.
Biak-na-bat6 is situated in the mountains about a mile north of
San Miguel de Mayumo, Bulacan.
* The Spanish view can be found in Sastr6n, La Insurreccion en
Filipinas y Guerra Hispano-Americana en el Archipielago, Ch. IV
et seq.
6 Galicano Apacible, June, 1900, in an Address "To the American
People," p. 6.
7 Hearings before the Senate Committee on the Philippines, 1915,
p. 254.




112


PHILIPPINE GOVERNMENT


(pp. 62 et seq.) described the reforms asked from Spain
as follows:
"The Philippines, then, will remain under Spanish
domination, but with more law and greater liberty, or
they will declare themselves independent, after steeping
themselves and the mother country in blood. The minister, then, who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by
instituting Filipino delegates. We say the same about
the Filipino representatives.
"These are the two fundamental reforms, which, properly interpreted and applied, will dissipate all clouds, assure affection toward Spain, and make all succeeding reforms fruitful. These are the reforms sine quibus non.
"Offices and trusts should be awarded by competition,
publishing the work and the judgment thereon, so that
there may be stimulus and that discontent may not be
bred. Then, if the native does not shake off his indolence
he can not complain when he sees all the offices filled by
Castilas.
"Therefore, we repeat, and we will ever repeat, while
there is time, that it is better to keep pace with the desires of a people than to give way before them; the former begets sympathy and love, the latter contempt and
anger. Since it is necessary to grant six million Filipinos
their rights, so that they may be in fact Spaniards, let the
government grant these rights freely and spontaneously,
without damaging reservations, without irritating mistrust."
Apolinario Mabini, probably best qualified of Filipinos
to voice their sentiments, writing from Manila on January
11, 1900, said:
"We will briefly state the historical why and wherefore of the Philippine revolution, as necessary in order to
better understand the means of improvement that may be
offered to the Filipinos. The death of three Philippine




THE REVOLUTIONARY GOVERNMENT


113


priests, Burgos, Gomez and Zamora (shot in 1872), produced a notable change in the sentiments of the people.
El Padre Burgos had been extremely popular because he
defended the rights of the native clergy; his violent death,
therefore, was deeply felt, and produced a general protest of indignation. It is true that this protest did not pass
beyond the four walls of the native's house and the narrow
circle of confidential friends, because the Spanish authorities kept most cruel punishments in reserve for that kind
of manifestation of independent judgment on the part of
natives, but just because the general indignation could not
utter itself it grew more and more in intensity.
"Later on several young Filipinos went to Spain, not
only in search of higher education, but also to expose to
the Spanish public the real wants of the Philippine people,
which, instead of being given attention to, had been studiously kept in the dark and repressed by the Spanish
authorities at the instigation of the friars (religious corporations). Those young Filipinos, in order to make
themselves heard, founded a paper at the expense of the
Philippine people, and demanded the regulation of the
Governor-General's faculties; Philippine representation
in the Spanish legislative body; liberty of press, of cults,
and of association; the prohibition of certain governmental proceedings (expedientes), by which a man was
condemned without being heard, and the domicile and
correspondence violated on mere secret denunciation; the
secularization of parishes (parachies); the equalization of
the Filipinos to Spaniards in all political and civil rights,
and in the participation of public appointments; great
facilities and few obstacles for agriculture, industry, and
commerce; in one word, the promulgation in these islands
of the Spanish Constitution, and complete assimilation of
the same equal to that of any in the Spanish provinces on
the Continent.
"The Spaniards turned deaf ears on these demands
P. I. Govt.-8.




114


PHILIPPINE GOVERNMENT


under the pretext that they were the work of some few
'idealists,' and saying always at the instigation of the
friars interested in maintaining the status quo, that the
people were still in a savage state, just the same as nowadays the Americans will not hear the demands made by
the revolutionaries, under the pretext that the insurrection
is the work of only a few ambitious Tagalo leaders." 8
Back of all was without doubt a reaching out toward
the doctrines relating to the equal rights of man.       Just
as in the American war for Independence "the fundamental principle...  was that the colonies were coordinate members with each other and with Great Britain
of an empire united by a common executive sovereign," 10
and inability to understand this aspiration brought failure
to Great Britain but success in her later dealings with
8 Quoted in Harper's History of the War in the Philippines, p. 28;
also to same effect in Mabini's La Revoluci6n Filipina. See further
Aguinaldo's message of June 23, 1898, quoted in Millet, The Expedition to the Philippines, pp. 49, 50; and Foreman, The Philippine
Islands, 3d Ed. (1906) pp. 448, 454, 455. Also Report, First Philippine Commission, Vol. I, p. 84. "It (the revolution) was seeking the
separation of the church and the state-the people did not want the
friars to continue being the official agents of the government in the
general governing of the provinces and municipalities. It also demanded more and better public schools, where the Spanish language
would be actually taught, and more opportunity for the Filipinos to
take part in the government of the Philippine Islands." Quezon,
supra. "In assigning a cause for the revolt of 1896-98, nearly all
writers, English and American, give the same as they gave for that
of 1872, namely 'the friars' and their 'intermeddling in politics.' But
while the friars may indirectly have had something to do with it, they
were by no means its principal or even its secondary cause.
As a matter of fact, the loss by Spain of her two principal colonies,
Cuba and the Philippines, was due to the results of the revolution of
1868 in Spain itself." Captain Blunt, An Army Officer's Philippine
Studies, p. 185.
10 Madison, Writings, IV., 533.




THE REVOLUTIONARY GOVERNMENT


115


Canada, Australia, and South Africa, so in the Philippine Revolution there was uppermost "the idea that the
Filipino people should have the same political and civil
rights as the Spanish people." 1'
~ 52. Desire for independence.-In all the statements relative to the causes of the revolutions against
Spain the word "Independence" does not appear. The
people asked for a more liberal government and for a
guarantee of fundamental human rights, not for separate
existence. Again is there seen a similarity to the Amnerican  Revolution, for in the     commencement of that
struggle, the people, acting as British subjects loyal to the
King and only demanding the rights of Englishmen,
scarcely any one advocated separation from the mother
country.
Prior to the Revolution of 1872, excepting the Moros,
no one in the Philippines thought of secession from Spain.
During the period of this revolution, only the slightest
manifestations of a desire for separation can he found.
Few Filipinos even dreamed of absolute independence.
No plan was considered for the loosening of the bonds
which held the archipelago to Hispania. On the contrary
the general desire was for a closer joinder of the colony
with Spain.1
There is a difference of opinion whether, when the
Revolution of 1896 started, it aimed at the independence
of the Philippines.s1  According to Le Roy "the idea of
11 Letter of the Nacionalista Party, September 1, 1910, Appendix
C, Special Report of Secretary of War Dickinson. See quotation
from Mabini in above section to same effect.
12See Foreman, The Philippine Islands, 3d Ed. (1906) p. 363;
Tavera, Census of the Philippine Islands, 1903, Vol. I, pp. 375, 379.
1I Manuel Sastr6n, La Insurreccion en Filipinas y Guerra HispanoAmericana, p. 66, argues vehemently that there can not be recognized
"other causes than the idea of independence exploited in every way




116


PHILIPPINE GOVERNMENT


independence" was "in the minds of the more intellectual
propagandists as far back as 1890, and it was really older
than that." "I But even if this be admitted, yet it is undeniable that a popular agitation for independence did not
manifest itself when the revolution of 1896 began. It was
only with Aguinaldo's manifesto of October 31, 1896, entitled "Liberty, Equality, and Fraternity," given greater
publicity in his manifesto of the following year, that an
authoritative statement of a desire for independence is
found. A portion of the manifesto of 1897 reads: "We
aspire to the glory of obtaining the liberty, independence,
and honor of the country." 16 All doubt as to aspirations
is removed by the various proclamations of 1898. Thus
following the Declaration of Independence under the Dictatorial government on June 12, 1898, we find Aguinaldo
in a message on June 23, 1898, the day when the Revolutionary government was proclaimed, saying that "now
they no longer limit themselves to asking for assimilation
with the political constitution of Spain but ask for a complete separation." Formal expression of a desire for independence came with a meeting of municipal presidents
on August 1 and action by the Congress on September
by an unjust campaign against the sovereignty of Spain by the secret
societies which have strangely secured such a firm foothold among
that race. We do not believe it necessary to have the intellectual
faculties of reflection, which we call reason, highly developed in order
to arrive at this conclusion."
14 Le Roy, The Americans in the Philippines, Vol. I, p. 141.
15 Quoted in Foreman, The Philippine Islands, 3d Ed. (1906) p.
394; Robinson, The Philippines: The War and the People, p. 38.
"On this day, October 31st (1898), Aguinaldo most emphatically declared that he and his followers had fought for complete independence, and that they would shed the last drop of their blood in securing it." Major Younghusband, The Philippines and Round About,
p. 75.




THE REVOLUTIONARY GOVERNMENT


117


29.16 This last date was proclaimed to be that of the
Filipino Independence Day.17
~ 53. Rise of Philippine nationality.1-The wielding of millions of individual Filipinos into a Filipino nation was, for centuries, a slow     process.   Potentialities
were there but organization was lacking. The native
political system was not conducive to solidarity. The
Spanish policy, while beneficial in many respects, was in
this particular not enthusiastically progressive. The people of the Islands possessed no education and had no
model by which they could measure their civil and political rights. In the words of Mabini, the reason why the
Spaniards could subjugate the Islands for three centuries
was "because the Filipinos were then in complete igno18 Addresses of the President of the Revolutionary Government
and of the President of the Congress on this occasion quoted by
Calder6n, Mis Memorias sobre la Revolucion Filipina, Appendix
pp. 10-16.
17 Foreman says of this event: "On October 1 (September 29) the
Ratification of Philippine Independence was proclaimed at Malolos
with imposing ceremony. From 6 A. M. the Manila (Tondo) railway
station was besieged by the crowd of sightseers on their way to the
insurgent capital (Malolos), which was en fete and gaily decorated
with flags for the triumphal entry of General Emilio Aguinaldo, who
walked to the Congress House attired in a dress suit, with Don
Pedro A. Paterno on his right and Don Benito Legarda on his left,
followed by other representative men of the Revolutionary Party,
amidst the vociferous acclamations of the people and the strains of
music. After the formal proclamation was issued the function terminated with a banquet given to 200 insurgent notabilities. The day
was declared by the Malolos Congress to be a public holiday in perpetuity." (p. 470, 3d Ed., 1906.) Copies of card of invitation to banquet, cover design of menu, and the menu, reproduced in Harper's
History of the War in the Philippines, pp. 72, 73.
18 See Mabini, La Revolucion Filipina; Mariano Ponce, Sobre Filipinas, in Builders of a Nation, pp. 17-52; McKinley, Island Possessions of the United States, pp. 216-230; Manuel L. Quezon, Resident
Commissioner to the United States, Hearings before the Committee
on the Philippines, United States Senate, 63d Session, pp. 254-257.




118


PHILIPPINE GOVERNMENT


rance and lived without any thought of national solidarity." 19 Rizal, in a letter to Reverend Vicente Garcia,
under date of January 17, 1891, wrote: "There is, then,
in the Philippines a progress or improvement which is individual, but there is no 'national' progress." 20
The nineteenth century saw a change almost imperceptible at first, but gradually evolving into racial consciousness.  Gusts came from    the rebellious storm  center
of Latin America. A modification of the commercial system had brought contact with other peoples and increased
wealth. The opening of the Suez Canal shortened the
distance between the Islands and European civilization.
An extension of education had brought knowledge of a
sort to many. A constantly increasing number of Filipino youths were sent to Europe for their education. In
Spain they formed into clubs and, in different papers of
which the fortnightly review, La Solidaridad of Madrid,
edited by Lopez Jaena, Marcelo H. Del Pilar, and others,
was the most noted, advocated progressive reforms for
the Philippines.21 Liberal democratic ideas, scanty to
19 Letter to General Bell of August 31, 1900.
20 Austin Craig, Letters and Addresses of Jose Rizal, published in
Philippine Education, December, 1915, p. 312.
21 "Referring later on to the reforms and improvements that might
calm or pacify the popular anxiety, it (La Solidaridad) asked,
among other things, that the government of the Islands should cease
to be military in nature in order that it might be changed into a civil
one; that the powers of the Governor-General be limited and determined by law; that the individual liberties protected by the Spanish
Constitution be extended to the Filipinos; that the Islands be properly represented in the Cortes; the expulsion of the friars or at least
the secularization of the parishes; a provision for competitive examinations for public employees of the Insular Government, excepting
the offices of the Governor-General and the chiefs of Departments
which should always be occupied by Spaniards; there ought to be
given some examinations in Spain for the filling of one half of the
vacant positions in the Islands and other examinations to be given in




THE REVOLUTIONARY GOVERNMENT


119


be sure in comparison with the momentous revolutions
then shaking the world, were disseminated by these returning scholars or came from radically inclined Spaniards.   The conspicuous    works of     Rizal circulating
secretly gave outward expression to suppressed feeling.
La Liga Filipina whose aim      according to its founder,
Rizal, was "to promote co-operation, to promote Filipino
development, social and economical" and the Katipunan
with secessionist ends, fomented nationalism.22  Yet, with
all this advance in wealth and thought, there came to the
Filipino little additional participation in the government
of his country. While the Electoral Law of 1890 was
adapted to the use of Cuba and Porto Rico, while as late
as November 25, 1897, they were granted a constitution
establishing autonomy, and while these two colonies had
at least representation in the Spanish Cortes, not even
such palliative reforms were permitted the Philippines.23
the Philippine Islands for the filling of the other half; the permanence of the positions thus created; and reform or suppression of
the civil guard." Mabini, La Revoluci6n Filipina, pp. 28, 29.
22The Katipunan is otherwise known as K. K. K., these initials
representing the words Kataastaasan Kagalanggalang Katipunan,
signifying "the very exalted and honorable union of the sons of the
country." La Liga Filipina y el Katipunan described by Mabini, La
Revoluci. '- Filipina, Ch. VII.
23 "Ever since the seizure of the Philippine Islands by the Spanish
government, more than three hundred years ago, the natives have
been deprived of all right of local self-government, in the face of the
blood treaty of 1565, granting the Philippines autonomous government and the liberties guaranteed by the Constitution of Cadiz in
1814, and have been denied the privilege of levying and collecting
their own taxes, or taking any part in the direction of the proceeds
of taxation, and have been controlled by governors not in sympathy
with them, but, without prior acquaintance, sent to them from a
nation foreign in thought to themselves. Unlike even the Island of
Cuba, they have been denied any shadow of participation in the affairs of government through having a membership in the Spanish




120


PHILIPPINE GOVERNMENT


From such actual extension of ideas and ideals, from
the stubborn opposition of Spanish officialdom to change,
from the intercourse of Filipino with Filipino, and finally
from the martyrdom of Rizal, there burst a Philippine
nationality which found itself as such in the common
cause of revolution.
~ 54. Causes of revolution against the United
States.-With insurrections against Spain fomenting
in the Islands at the time of the outbreak of the SpanishAmerican War, with the development of racial unity and
of an ideal-independence, and with the United States insisting on recognition of American sovereignty, the only
way by which war could have been avoided would have
been by diplomatic negotiations leading to an American
protectorate or to a government under American guidance
for a limited period. A war under such conditions is not
to the discredit of either party. The United States had
to fight to command respect for herself as a nation, while
as to the contest of the Filipinos for the possession of their
country, all fair-minded men will agree with Senator
Hoar in an address before Congress in which he said:
"Mr. President, there is one mode by which the people
of the Philippine Islands could establish the truth of the
charges as to their degradation and incapacity for selfgovernment which have been made by the advocates of
Imperialism in this debate, and that mode is by submitting tamely and without resistance to the United
States." 24
An irritating factor was the question-Was independence promised? This point has since become one of conCortes." Memorandum of Felipe Agoncillo relative to the right of
the Philippine Republic to recognition, accompanying letter to the
Honorable the Secretary of State, of date January 11, 1899, p. 9.
24 Quoted in Forbes-Lindsay, America's Insular Possessions, Vol.
II, pp. 178, 179.




THE REVOLUTIONARY GOVERNMENT


121


troversy.   General Aguinaldo,25 Judge       Blount"    and
others have upheld the affirmative, which Admiral
Dewey,2   Secretary Worcester 28 and others have bluntly
denied. What is undoubtedly true, is that the United
u See Answer to Paterno's Manifesto from the Consultative Assembly of June, 1898; Appeal Addressed to the Civilized Nations,
September 23, 1899, quoted in Harper's History of the War in the
Philippines, pp. 85-90; Aguinaldo's True Review of the Philippine
Revolution; and Agoncillo's Memorial to the U. S. Senate of January 30, 1899, quoted in Kalaw, The Case for the Filipinos, pp. 64-78.
26 The American Occupation of the Philippines.
27 Admiral Dewey makes categorical denial as follows:
"Hongkong, June 6, 1898 (Cavite, June 3).
"Secretary of Navy, Washington:
"Receipt of telegram of May 26 is acknowledged, and I thank the
Department for the expression of confidence. Have acted according
to the spirit of Department's instructions therein from the beginning,
and I have entered into no alliance with the insurgents or with any
faction."                                       "DEWEY."
Autobiography of George Dewey, Admiral of the Navy, Appendix
E, p. 311.
"Washington, January 30, I900.
"Dear Senator Lodge:-The statement of Emilio Aguinaldo, as recently published in the Springfield Republican, so far as it relates to
me, is a tissue of falsehoods. I never promised, directly or indirectly,
independence for the Filipinos. I never treated him as an ally, except
to make use of him and the soldiers to assist me in my operations
against the Spaniards. He never alluded to the word independence
in any conversation with me or my officers.
"The statement that I received him with military honors or saluted
the so-called Filipino flag is absolutely false. Sincerely yours,
"GEORGE DEWEY."
(Quoted in Harper's History of the War in the Philippines, pp. 90,
91.) See statement of similar tenor made by Admiral Dewey to the
First Philippine Commission, quoted in McKinley, Island Possessions
of the United States, p. 232, and in Note 7, to sec. 70 infra.
"The assertion that I made Aguinaldo any promises is a pure fabrication." Admiral Dewey in an interview with Edwin Wildman,
quoted in the latter's book, Aguinaldo-A Narrative of Filipino Ambitions, p. 81.
28 The Philippines Past and Present, Ch. IL




122


PHILIPPINE GOVERNMENT


States by properly accredited agents made no promises of
independence, but that the actions of certain Americans
led the Revolutionists to draw inferences, exaggerated by
their hopes. General Thomas M. Anderson of the American expeditionary forces, describing the conditions on
July 1, 1898, writes: "Whether Admiral Dewev and
Consuls Pratt, Wildman, and Williams did or did not
give Aguinaldo assurances that a Filipino government
would be recognized, the Filipinos certainly thought so,
probably inferring this from their acts rather than from
their statements. If an incipient rebellion was already in
progress, what could be inferred from the fact that
Aguinaldo and thirteen    other banished Tagals were
brought down on a naval vessel and landed in Cavite?" 29
The Filipino view point is no where better expressed
than by Mabini, writing from Manila on January 11,
1900:
"We would ask, must the Filipino people, when grown
tired of the Spanish yoke, necessarily have had no other
aim in view but that of submitting themselves to a new
yoke, or may they not perhaps have aspired to an improvement of their condition? Even were we to look on them
as being in a savage state and devoid of all culture, we
cannot possibly deny them the natural inclination towards
a better life, a thing we find even in irrational beings." 80
The American view point summarizing the entire situation is stated by President Wilson, as follows:
9 Our Rule in the Philippines, 170, No. Am. Rev., Feb., 1900, p.
272; Harper's History of the War in the Philippines, p. 83. Mabini
in his Revolucion Filipina, pp. 63, 64, is conservative in his claims
relative to a promise of independence. He speaks of vague and
verbal promises by American officials. See Kalaw, The Case for the
Filipinos, pp. 48, 49.
80 Quoted in Harper's History of the War in the Philippines, p. 28.
Same idea expressed in Mabini's letter to General Bell of August 31,
1900.




THE REVOLUTIONARY GOVERNMENT


123


"A sudden dismay and discontent had come upon the
men who served with Aguinaldo outside the American
lines at Manila, and who did not clearly know whether
they were allies or subjects. They had not taken up arms,
they said, merely to make the Americans their masters instead of the Spaniards; but to make themselves free, and
had deemed the Americans their allies in that undertaking. The American commanders had made them no promises, but they had seemed tacitly to accord them the place
of allies, and their own hopes had drawn the inference.
When they found that those hopes were to be denied them
they took their cause into their own hands and set up the
government as if of an independent republic with Aguinaldo as their president." 83
~ 55. The dictatorial government was established
on the advice of Ambrosio Rianzares Bautista by a
proclamation over Aguinaldo's name on May 24, 1898.82
Such a government, according to the proclamation, was
"to be administered by decrees promulgated upon my responsibility solely," until the Islands shall be "completely conquered and able to form a constitutional convention, and to elect a President and a Cabinet, in whose
favor I will duly resign the authority." Prior thereto, a
proclamation 33 to prepare the people for the coming of
the American squadron had been sent to representative
81 Woodrow Wilson, A History of the American People, Vol. V,
pp. 297, 298.
82 See Aguinaldo's Resena Veridica de la Revolucion Filipina.
(True Review of the Philippine Revolution) of Sept. 23, 1899, published in Vol. 35, Cong. Record, Part 8, Appendix, p. 440. Proclamation quoted in Senate Document 62, p. 431.
83 A portion reads:
"COMPATRIOTS: Divine Providence is about to place independence within our reach, and in a way the most free and independent
nation could hardly wish for.
"The Americans, not from mercenary motives, but for the sake of
humanity and the lamentations of so many persecuted people, have




124


PHILIPPINE GOVERNMENT


Filipinos, and the day following his arrival, Aguinaldo
had issued a call to arms. The flag of the Philippines was
formally unfurled and independence proclaimed in elaborate ceremonies at Cavite on June 12, 1898.      A decree
promulgated on June 18th, supplemented by another two
days later, provided for the administration of the municipalities and provinces and for the election of representatives to the Revolutionary Congress.84 On June 23rd, the
Dictatorial gave way to the Revolutionary government
with Aguinaldo as President. Aguinaldo, in the course
of the proclamation providing fte Constitution of the
Revolutionary government, said:
"This government, desirous of demonstrating to the
Philippine people that one of its objects is to abolish with
a firm hand the inveterate vices of Spanish administration, substituting a more simple and expeditious system
of public administration for that superfluity of civil service and ponderous, tardy and ostentatious official routine,
I hereby declare as follows, viz:
"Article 1.-The Dictatorial government, shall be
henceforth called the Revolutionary government, whose
considered it opportune to extend their protecting mantle to our beloved country, now that they have been obliged to sever relations
with Spain, owing to the tyranny this nation is exercising in Cuba,
causing enormous injury to the Americans, who have such large commercial and other interests there.
"There, where you see the American flag flying, assemble in numbers; they are our redeemers.
"Our unworthy names are as nothing, but one and all of us invoke
the name of the greatest patriot our country has seen, in the sure and
certain hope that his spirit will be with us in these moments and
guide us to victory-our immortal Jose Rizal." Quoted in Robinson,
The Philippines: The War and the People, pp. 44, 45; and in Foreman, The Philippine Islands, 3d Ed., 1906, pp. 432-434.
84Aguinaldo's True Review of the Philippine Revolution; Worcester, The Philippines, Past and Present, Vol. I, pp. 246-248, citing
record 206.3.




THE REVOLUTIONARY GOVERNMENT


125


object is to struggle for the independence of the Philippines, until all nations, including Spain, shall expressly
recognize it, and to prepare the country for the establishment of a real Republic. The Dictator shall be henceforth styled the President of the Revolutionary government...
Other articles provided for a Cabinet with four secretaryships and a Congress. Accompanying the constitution of the provisional government was a presidential
message.86
85 Quoted in Foreman, The Philippine Islands, 3d Ed., 1906, p. 448;
Robinson, The Philippines: The War and the People, pp. 49, 50;
Senate Document 62, pp. 432-437; Calder6n, Mis Memorias sobre la
Revolucion Filipina, pp. 77-92.
36 The conclusion is as follows:
"Thus they have constituted a revolutionary government with wise
and just laws, suited to the abnormal conditions confronting them
and which, at the proper time, will prepare them for a true republic.
Thus, taking for its only justification the right, for its sole aid, justice, and for its only means honorable labor, the government calls
upon all its Filipino sons without distinction of class, and invites
them to unite solidly with the object of forming a noble society, ennobled not by blood nor by pompous titles but by labor and the personal merit of the individual-a free society where there is no place
for egotism and personal politics which wither and blight, nor for
envy and favoritism which debase, nor for charlatanry and buffoonery, which cause ridicule.
"No other course is possible. A people that has given proof of
fortitude and valor in suffering and in danger, of industry and learning in time of peace, is not made for slavery. This people is called
to be great, to be one of the strong arms of Providence in directing
the destinies of humanity. This people has sufficient energy and resources to recover from.the ruin and humiliation in which it has been
placed by the Spanish Government and to claim a modest but worthy
place in the concert of free nations.
"Given at Cavite, June 23, 1898.
"EMILIO AGUINALDO."
Quoted in Millet, The Expedition to the Philippines, pp. 49, 50; Republic or Empire, pp. 741, 742; Foreman, The Philippine Islands, 3d
Ed., 1906, pp. 454, 455; and in Calder6n, supra, pp. 77-81.




126


PHILIPPINE GOVERNMENT


The Dictatorial government had lasted only a little over
a month. It had, however, fulfilled its mission-to initiate the revolution and to pave the way for more systematic administration.
~ 56. Course of events under the Revolutionary
government.-The change to a revolutionary form of
government had, of course, one well-defined purpose, to
secure recognition from foreign powers. So on July 15,
copies of the decrees containing the organization "best
suited to the popular will" were furnished Admiral
Dewey for communication to the government of the
United States.37 On the sixth of August, a memorandum addressed to foreign governments. petitioned for the
recognition of belligerency and the independence of the
Philippines."8
Events moved rapidly. Rules for the conduct of executive business were made known on June 27. The members of the cabinet were named on July 15. The "declaration of independence" was promulgated at a meeting
of municipal presidents on August 1, afterwards ratified
by the Congress on September 29. Congress assembled
at Malolos on September 15.
The capital during this period was first at Bacoor,
Cavite, but later at Malolos, Bulacan.
With the passage and executive sanction of the Malolos
Constitution on January 21, 1899, the Revolutionary
government was ready to merge into the Philippine Republic. But the proclamation of the President of the
United States issued by the Commanding General on
January 4, 1899, explicitly claiming sovereignty over the
Archipelago, followed by the counter proclamation of
87 See Report of the Bureau of Navigation, 1898, Appendix, pp.
111-117; Chadwick, The Relations of the United States and Spain,
Vol. 2, p. 380.
8 Quoted in Foreman, The Philippine Islands, 3d Ed., 1906, pp.
456-458; Republic or Empire, pp. 742, 743.




THE REVOLUTIONARY GOVERNMENT


127


Aguinaldo the next day,39 together with the hostilities
which broke out in February, made realization of this
hope impossible of attainment.
The dissolution of all pretense at governmental form
came with the capture of General Aguinaldo at Palanan,
Cagayan Valley, on March 23, 1901, by General Funston,
with  a  force of eighty-eight men, mostly        Macabebe
scouts.40  Thereupon, "entirely of his own volition, and
not under pressure of any kind, he (Aguinaldo) issued a
manly and well-written proclamation advising his subordinates to give up the struggle that had wrought such
harm to the country, and to accept the sovereignty of the
United States." 41    On April 1st following, Aguinaldo
took the oath of allegiance to the United States.'     This
important event accelerated the close of the war. The
proclamation of the President of the United States of
July 4, 1902, granting full and complete pardon and
amnesty to all persons, as therein set forth, for political
89 Senate Document 208, p. 103; Otis Report, 1899, pp. 76-79.
40 Authoritatively and modestly described by General Funston in
his Memories of Two Wars, Ch. VII.
On November 24, 1900, General Otis telegraphed to Washington as
follows: "Claim to government by insurgents can be made no longer
under any fiction. Its treasurer, secretary of the interior, and president of congress in our hands; its president and remaining cabinet
officers in hiding, evidently in different central Luzon provinces, acting as banditti, or dispersed playing the role of 'amigos,' with arms
concealed." Sec. of War, Annual Reports, 1900, I, pt. iv, pp. 208
et seq.
41 Funston, supra, p. 427. Aguinaldo's letter, "To the Filipino People", is printed in the Official Gazette, for January 1, 1903, at p. 26.
The conclusion reads: "... By acknowledging and accepting
the sovereignty of the United States throughout the entire Archipelago, as I now do without any reservation whatsoever, I believe that
I am serving thee, my beloved country. May happiness be thine!
"EMILIO AGUINALDO."
42 Quoted in Foreman, The Philippine Islands, 3d Ed., 1906, p. 509.




128


PHILIPPINE GOVERNMENT


offenses committed in the Islands, officially recognized
pacification.4
Mabini has said as to the causes bringing the revolution
to an end: "We fought under the conviction that our duty
and dignity demanded of us the sacrifice of defending,
while we could, our liberties, because without them social
equality between the dominant caste and the native class
would be practically an impossibility, and so we should
not succeed in establishing perfect justice between us; but
we knew that it would not be long before we should exhaust our scanty resources and that our defeat was inevitable.  War became, then, unjustifiable from   the
moment when the immense majority of the people preferred to submit to the conqueror and many of the revolutionists themselves passed to his ranks, because not being able to enjoy their natural liberties while the American forces prevented it, and not having the resources for
removing this obstacle, they deemed it prudent to yield
and to have hope in the promises made in the name of the
people of the United States." "
~ 57. Parties.-To return to a consideration of
some of the most important governmental manifestations-parties known as such did not exist. There was
nevertheless always apparent two different groups, the
first the Radicals or "Irreconciliables" and the second the
Conservatives or "Pacificos." The former were the war
party and believed in independence at any cost; the latter
wanted peace, with independence if possible, but if not,
the best government which peaceful means could obtain
from the Spanish or American regimes. Many of the
48 Construed in U. S. v. Luzon (1903), 2 Phil. 380; U. S. v. Pajarillo (1911), 19 Phil. 288; and other cases.
Le Roy's English Translation of Mabini's "Manifesto," published
in the American Historical Review, Vol. XI, 1906, p. 857. Commissioner Quezon would also give credit to the pacificatory efforts of the
Second Philippine Commission.




THE REVOLUTIONARY GOVERNMENT


129


Conservatives left the Revolutionary government and
assisted the American officials in establishing an administration. Of those then remaining in the Revolutionary
government there are again seen two new tendencies,
those believing in a strong centralized power (as Mabini)
-the Absolutists, and those jealous of executive encroachment (as Calderon)-the Constitutionalists.
Survivals of these early groupings, indicative of
methods of thought, appear subsequently in the Federalist
and Nacionalista parties.
~ 58. The Dictator and President.-The head of
the government during the entire period 1897 to 1901
was Emilio Aguinaldo y Famy. He was successively the
Commanding General, the Dictator, the President of the
Revolutionary government, and the President of the
Philippine Republic.' If any one else was seriously considered for these positions, there was no manifest public
movement with that end in view. President Schurman,
President of the first Philippine Commission, says that
"Aguinaldo enjoyed the confidence of the insurgents and
their sympathizers and abettors... in virtue of his
patriotic services, his attested honesty, and his remarkable gift of surrounding himself with able coadjutors and
administrators." 4
Analyses of the character of Aguinaldo are as contradictory as they are numerous.    There are those who
would deify him into one more than human. The soldier
54 Article 97 of the Malolos Constitution provided that "the actual
President of the Revolutionary Government shall henceforth assume
the title of President of the Republic and shall exercise this office
until, after the Constituent Assembly has been convoked, it shall have
proceeded to the election of the person who is to fill the office definitely."
46 Philippine Affairs, A Retrospect and Outlook, An Address by
Jacob Gould Schurman, President of the First Philippine Commission before the Members of Cornell University, p. 6.
P. I. Govt.-9.




130


PHILIPPINE GOVERNMENT


who captured him writes that "He is a man of many excellent qualities, far and away the best Filipino I ever was
brought in contact with." 47 There are others who would
make of Aguinaldo a mere figurehead, the usual method
for whom is to eulogize his conmpatriots in order to belittle
his accomplishments. For example, his proclamations are
spoken of ironically as "Aguinaldo, the syn(licate of
academic warriors." 8    Certainly full credit should )e
given to the able men who aided Aguinaldo-to Luna,
Buencamino, Paterno, Calderon, Boautista,;Agoncillo,
and a long array of others-above all to Ap)olinario
Mabini, the head of the cabinet, and the confidential adviser of Aguinaldo, variously described by foreigners and
Filipinos alike as "the soul of the movement," "the ruling
power behind the Presidency," "the brains of the Revolution," "Camera negra del Presidente-Black Chamber of
the President," "the great Filipino 'character' produced
by the Revolution," "the sublime paralytic." 49 Concede
all this, and yet when impartial history is written, it must
adjudge that Aguinaldo, although seeking personal aggrandizement,50 was, as a soldier brave and sagacious, as
a leader popular with the masses, as a patriot tenacious to
his country's ideal until the last, as the head of a revolution, able to know his own limitations and to choose and
have faith in the talents of others. As a contemporaneous
foreign observer has well said, Emilio Aguinaldo "may
47 Funston, Memories of Two Wars, p. 421.
48 Edwin Wildman, Aguinaldo-A Narrative of Filipino Ambitions, p. 93.
i9 See lectures by Commissioner Rafael Palma on Mabini, and various foreign writers. Mabini naively mentions his appellation of
"Camara negra del Presidente" in his La Revoluci6n Filipina, p. 70.
50 See Mabini, La Revolucion Filipina, especially p. 87. Chapter X,
"End and Downfall of the Revolution," was printed in El Comercio
of July 23, 1903. Le Roy's English translation of this chapter appears in Vol. XI, American Historical Review, 1906, pp. 843 et seq.




TIlE REVOLUTIONARY GOVERNMENT


131


be ignorant according to a civilized standard, he may appear stoli( and wanting in quick intelligence, but if we
judge men by their deeds rather than by the tittle-tattle
of conventional criticism, Aguinaldo has, in the face of
every disadvantage, and at the early age of twenty-nine,
placed himself in the ranks of the great and acknowledged
leaders of popular risings, which when unsuccessful are
stigmatised as rebellions, but which when successful bear
the honoured title of legitimate revolutions." 51
~ 59. Cabinets.-The Cabinet was first provisionally organized on July 15, 1898. Baldomero Aguinaldo
then became Secretary of War and Public Works; Leandro Ibarra, Secretary of the Interior; and Mariano Trias,
Secretary of Finance.52 Following a decree of September 26,53 amplifying the organic decree of the previous
June 23 and prescribing the functions of the different departments, the cabinet was regularly constituted with
Cayetano Arellano at its head as Secretary of Foreign
Affairs."5 Later on January 2d, 1899, the Cabinet became
entirely radical in its membership, Mabini becoming Sec51 Major Younghusband, The Philippines and Round About, 1899,
p. 78.
52 Calder6n, Mis Memorias sobre la Revoluci6n Filipina, pp. 92, 93.
68 Quoted in Calder6n, pp. 100-102.
64 Calder6n, pp. 102, 103, gives the personnel of the central government at this time as follows:
"In order to fill the positions provided for in my Decree of even
date, I appoint the following gentlemen: Secretary of Foreign Relations, Mr. Cayetano S. Arellano; Director of Diplomacy, Mr. Trinidad H. Pardo de Tavera; Director of the Navy and Commerce, Mr.
Pascual Ledesma; Director of War, Mr. Antonio Luna; Secretary of
Fomento, Mr. Felipe Buencamino; Director of Public Instruction,
Mr. Gregorio Araneta; Director of Justice, Mr. Arsenio Cruz Herrera; Director of Agriculture, Mr. Jose Alejandrino; Director of
Public Works, Mr. Fernando Canon Faustino; Director of Police
and Internal Order, Mr. Severino de las Alas; Director of Communications, Mr. Jose Vales; Director of Hygiene, Mr. Jose Albert; Sec



132


PHILIPPINE GOVERNMENT


retary of Foreign Affairs." Still later on May 9th, of
the same year, the "peace cabinet" headed by Pedro A.
Paterno and Felipe Buencamino came in.6"
retary of Justice, Mr. Jose Baza; Director of the Registry, Mr. Juan
Tongco.
"Malolos, September 22, 1898.
"EMILIO AGUINALDO."
"On October 4th, by a Decree of the Revolutionary Government,
the Department of the Navy and Commerce was divided into two
departments: That of the Navy and of Commerce, Pasqual Ledesma
being appointed Director of the Navy, and Esteban de la Rama,
Director of Commerce.
"Thus was the Revolutionary Government constituted from June
to December, 1898."
Le Roy, the Americans in the Philippines, Vol. I, pp. 290, 291, says
on the same subject:
"In September, the place of Secretary of Foreign Affairs in the
Cabinet, which had been left open until some one with prestige could
be named for it, had been bestowed upon Cayetano S. Arellano, generally recognized as the Filipino of most solid legal attainments and
a man respected by all, Spaniards as well as Filipinos..
Aguinaldo conferred upon Dr. T. H. Pardo de Tavera the nomination of Director of Diplomacy in the Department of Foreign Affairs.
Gregorio Araneta, a prominent young lawyer of Manila, of Bisayan
birth, also of the conservative party, was made Secretary of Justice,
and Benito Legarda, a wealthy half-caste business man of the capital,
was named Director of Agriculture, Commerce, etc. Aguinaldo's
military associates, Baldomero Aguinaldo and Mariano Trias, retained respectively the posts of Secretary of War and Secretary of
the Treasury, while Felipe Buencamino was for a time head of the
Bureau of Public Works. The membership of the Cabinet shifted so
often that it was afterward difficult to say just who was who or what.
The main thing to note is that the more characteristic conservatives
remained but a short time in it. In the background was always
Mabini."
55 Mabini, La Revolucion Filipina, p. 71; Le Roy, Vol. I, p. 382, n.
"President and foreign affairs, Mabini; Interior, Sandiko; Finance,
Trias; War, Aguinaldo, (B); Fomento (education, public works,
agriculture and commerce) Gonzaga." Jaime C. de Veyra and
Mariano Ponce, Efemerides Filipinas, p. 4.
66 Mabini, La Revoluci6n Filipina, p. 82; Le Roy, Vol. I, pp. 89, 90.




THE REVOLUTIONARY GOVERNMENT


133


The cabinet as constituted under the presidency of
Mabini met twice a week on set days at Malolos, and at
the close of its deliberations forwarded to Aguinaldo a
statement of the subjects discussed and the conclusions
reached, for his decision. The president of the republic
did not preside at, or take part in, its deliberations.67
~ 60. Foreign delegates."8-The         necessity of foreign delegates had early been recognized. Felipe Agoncillo was named as envoy of the Filipino government. On
November 23, 1898, a commission was nominated to make
known to the civilized world the true character of the
country and the capacity of the Filipinos for government,
"On the ninth of last May I ceased to participate in the government
of my native land, because the National Assembly had deemed it expedient that others should take my place, in the hope that some compromise might thereby be arrived at which would put an end to the
war between the United States and the Philippines in a manner
friendly and honorable to both sides." Mabini, A Filipino Appeal to
the People of the United States, 170 No. Am. Rev., January, 1900,
p. 54. As told by Buencamino, himself: "At the first meeting of
Congress in San Isidro, Nueva Ecija, the first day of May, 1899, it
was resolved to change the war policy for one of peace with the
United States; and this change having been accepted by Don Emilio
Aguinaldo, it resulted, as was natural, in a change in the cabinet,
Sefior Mabini being substituted by Don Pedro Paterno, who, with
Don Felipe Buencamino, proclaimed the new policy of conciliation."
(Annual Reports of the War Department for the fiscal year ended
June 30, 1901, Report of the Lieutenant-General Commanding the
Army, Part II, p. 118.) This cabinet was constituted as follows:
President, Pedro Paterno; Foreign Affairs, Buencamino; Interior,
De las Alas; War (Acting), Flores; Finance (Acting), Ilagan; Instruction, Velarde; Public Works, Maximo Paterno; Agriculture,
Industry, and Commerce, Guerrero.
57 Worcester, The Philippines Past and Present, Vol. I, pp. 266, 267.
58 See Mabini, A Filipino Appeal to the People of the United
States, 170 No. Am. Rev., Jan., 1900, p. 54; Jaime C. de Veyra and
Mariano Ponce, Efemirides Filipinas, p. 5; Teodoro Kalaw, Documentos Constitucionales sobre Filipinas, 2d part, pp. 34, 35; Maximo
Kalaw, The Case for the Filipinos, Ch. IV.




134


PHILIPPINE GOVERNMENT


and to ask recognition of the independence of the Philippines. Later on January 26, 1899, a second commission
of diplomatic representatives was named.   Prominent
Filipinos, with residences in Hongkong, Japan, Europe,
and the United States, were accordingly designated as
such.  The principal of the diplomatic representatives
were Luna, Ponce, Apacible, Del Pan, Regidor, Lozada,
and Agoncillo. The last nanmed was especially active in
Paris during the meetings of the peace commissioners and
in the United States at the time of public interest in the
Philippine question. He was never officially received by
the President but was well known to the American public for his unswerving devotion to the interests of his
country and to his countrymen for his patriotic selfsacrifices.
The instructions to these delegates were brief. They
were to work according to circumstances and much had
to be confided to their tact and prudence.
~ 61. The Revolutionary Congress.-In conformity
with the organic decree of June 23, made effective by decrees of September 4 and 10, the Revolutionary Congress
convened in the church of Barasoain, near Malolos,
Bulacan, on September 15, 1898.59 Eighty-five deputies,60
among the ablest men of the Archipelago, responded to
the summons, although the list printed with the official
edition of the political constitution of the Philippine Republic contains the names of ninety-two members, later
raised to one hundred and ten.6' Some members were
69 Calder6n, Mis Memorias sobre la Revolucion Filipina, Appendix,
pp. 1-3.
6 Worcester, The Philippines Past and Present, Vol. I, p. 264;
Foreman, The Philippine Islands, 3d Ed. (1906), p. 469, gives the
number at fifty-four.
61 Le Roy, The Americans in the Philippines, Vol. I, pp. 288, 289,
notes.




THE REVOLUTIONARY GOVERNMENT


135


elected and some appointed.' Naturally the legal profession was most largely represented. While a few delegates
were graduates of European Universities, they had little
or no knowledge of matters political and constitutional."
Nevertheless, F. D. Millet, a well-known journalist writing from personal observation, states that all "were exceptionally alert, keen, and intelligent in appearance." "
And John Barrett says that they "would compare in behavior, manner, dress and education with the average
men of the better classes of other Asiatic nations, possibly
including the Japanese. These men, whose sessions I repeatedly attended, conducted themselves with great decorum and showed a knowledge of debate and parliamentary law that would not compare unfavourably with the
Japanese Parliament." 65
The following description of the opening of the Revolutionary Congress at Malolos was written the day after.
September 16, 1898, by Mr. Millet, one of the two foreign
correspondents present:
"At the large basilica of Barasoain (Malolos) we found
a large number of the delegates already assembled, and
the guards drawn up to receive the expected cortege of the
President and his suites. The bald interior of the church
was sparsely relieved by crossed palm-leaves and wreaths
fastened to the columns which divide the nave from the
aisles, and on the great bare spaces between the windows.
In the middle of the nave were two bentwood chairs; on
either side and behind these, in the aisles, were seats and
benches for spectators. To the left of the chancel a long
table, draped with blue and red, was arranged for the
62 Names given in Calderon, Appendix, pp. 2, 3.
u Calder6n, pp. 234, 235.
" Millet, The Expedition to the Philippines, pp. 261-267.
U John Barrett, ex-Minister to Siam, in an address at Shanghai,
January 12, 1899; Same author, XX Review of Reviews, "Some
Phases of the Philippine Situation," July, 1899, p. 65.




136


PHILIPPINE GOVERNMENT


secretaries, and opposite it were special seats for invited
guests, and in the front one next to the chancel rail we
were assigned our places. The chancel was hung with a
great white drapery, rudely painted to represent ermine,
and a broad border of red cloth with palm-leaves and
wreaths framed in this curtain. Crossed insurgent flags
ornamented the pilasters on each side, and in the middle
of the chancel, under the imitation ermine, was a long
table draped with light blue and crimson, and behind this
three large carved chairs. While we were waiting for the
functionaries to arrive, we had an excellent opportunity
of studying those who had come from all over the
islands to assist in the foundation of a republic-for this
was their professed purpose. Every man was dressed in
full black costumes of more or less fashionable cut,
according to his means or his tastes..
"At last, to the sound of the national march, the delegates moved in a body to the door and then back again,
divided, and then Aguinaldo, looking very undersized and
very insignificant, came marching down, bearing an ivory
stick with gold head and gold cord and tassels. A group
of tall, fine-looking generals and one or two dignitaries
in black accompanied him, and half surrounded him as
they walked along. Mounting the chancel steps, Aguinaldo took the middle seat behind the table, the Acting Secretary of the Interior took the place on his right, and a
general occupied the carved chair on his left. Without
any formal calling to order, the secretary rose and read
the list of delegates, and sat down again. Then Aguinaldo
stood up, and after the feeble vivas had ceased, took a
paper from his pocket, and in a low voice, without gestures and without emphasis, and in the hesitating manner
of a schoolboy, read his message in the Tagalo language.
Only once was he interrupted by vivas, and that was when
he alluded to the three great free nations-England,




THE REVOLUTIONARY GOVERNMENT


137


France and America-as worthy models for imitation.
He next read a purported translation in Spanish with
even more difficulty, and when he had finished there was
quite a round of cheers, proposed and led by the veteran
general Buencamino, for the President, the republic, the.
victorious army, and for the town of Malolos. Then
Aguinaldo arose and declared the meeting adjourned until
it should re-assemble prepared to elect officers and to organize in the regular manner. The long-talked-of and
ever-memorable function was over." 66
The Spanish version of the message of the President
reads in translation as follows:
"Representatives:-The work of the revolution being
happily terminated and the conquest of our territory completed, the moment has arrived to declare that the mission of arms has been brilliantly accomplished by our
heroic army and now a truce is declared in order to give
place to councils which the country offers to the service
of the government in order to assist in the unfolding of
its programme of liberty and justice, the divine message
written on the standards of the revolutionary party.
"A great and glorious task, an undertaking within the
capacity of every class of patriots, is it for undisciplined
troops to fight and to break lances in opposition to the injustice done to those whom they defend and protect. But
this is not all.
"It remains for us, further, to solve the grave and supereminent problems of peace for those for whom our
fatherland demanded from us the sacrifice of our blood
and of our fortunes and now at the present time calls
for a solemn document, expressive of the high aspirations of the country, accompanied by all the prestige and
all the grandeur of the Filipino race, in order to salute
with this the majesty of those nations which are united


66 Millet, Id.




138


PHILIPPINE GOVERNMENT


in accomplishing the high results of civilization and
progress.
"To these great friendly nations, whose glorious liberty
is sung by the muse of history was addressed the sacred
invocation which accompanied our undertaking in its incredible acts of valor, to these nations the Filipino people now sends its cordial salutations of lasting alliance.
"At this opening of the temple of the laws, I know how
the Filipino people, a people endowed with remarkable
good sense, will assemble. Purged of its old faults, forgetting three centuries of oppression, it will open its heart
to the noblest aspirations and its soul to the joys of freedom; proud of its own virtues without pity for its own
weaknesses, here in the church of Barasoain, once the
sanctuary of mystic rites, now the august and stately temple of the dogmas of our independence, here it is assembled in the name of peace, perhaps close at hand, to unite
the suffrages of our thinkers and of our politicians, of our
warlike defenders of our native soil and of our learned
Tagalo psychologists, of our inspired artists and of the
eminent personages of the bench, to write with their votes
the immortal book of the Filipino constitution as the supreme expression of the national will.
"Illustrious spirits of Rizal, of Lopez Jaena, of Hilario
del Pilar! August shades of Burgos, Pelaez and Panganiban! Warlike genuises of Aguinaldo and Tirona, of
Natividad and Evangelista! Arise a moment from your
unknown graves! See how history has passed by right
of heredity from your hands to ours, see how it has been
multiplied and increased to an immense size to infinity by
the gigantic strength of our arms, and more than by arms,
by the eternal, divine suggestion of liberty which burns
like a holy flame in the Filipino soul. Neither God nor
the fatherland grants us a triumph except on the condition that we share with you the laurels of our hazardous
struggle.




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139


"And you, representatives of popular sovereignty, turn
your eyes to the lofty example of tl-e illustrious patriots!
"Let this example and their revered memory, as well
as the generous blood spilled on the battlefields, be a
potent incentive to arouse in you a noble spirit of emulation to dictate with the great wisdom your high mandate
demands, the laws which in this fortunate era of peace
are destined to govern the political destinies of our
country." 67
Following the procedure outlined in the decree of June
23, the Congress was organized with Pedro A. Paterno
as President, Benito Legarda as Vice President, and
Gregorio Araneta and Pablo Ocampo, secretaries.68 On
September 17th Congress listened to an eloquent address e
by its president, Paterno, and elected its committees.70
67 Millet, Id. Also quoted in Spanish in Calder6n, Mis Memorias
sobre la Revolucion Filipina, Appendix, pp. 3-5.
68 Calder6n, Appendix, pp. 5, 6.
69 Quoted by Calder6n, Appendix, pp. 6-8.
70 The committees were constituted as follows:
Committee on congratulations: Messrs. President of the Congress,
first-secretary, and representatives Higinio Benitez, Joaquin Gonzalez, Felipe Buencamino, Aguedo Velarde, Felix Bautista, Pablo
Tecson, Jose Albert, Trinidad H. P. de Tavera, Juan Tuason, and
Vicente Somosa.
Committee on message: Messrs. Vice-President of the Congress,
second-secretary, Antonio Luna, Salvador V. del Rosario, Jose
Infante, Trinidad H. P. de Tavera, Hugo Ilagan, Jose Baza Enriquez,
Jose Albert, Tomas G. del Rosario, Jose Lerma, Teodoro Gonzalez,
Hipolito Magsalin, Sofio Alandy, Mariano Abella, Jose Maria de la
Vifia, Jose Luna and Alberto Baretto.
Committee on internal regulations: Messrs. Higinio Benitez, Ariston Bautista, Felipe Calder6n, Alberto Baretto, Domingo Samson,
Felix Ferrer, Jose Albert, Joaquin Gonzalez, Trinidad H. P. de
Tavera, Jose Maria de la Vifia, Teodoro Gonzalez, Jose Lerma,
Salvador V. del Rosario, Antonio Luna, Isidro Paredes, Felipe
Buencamino, Arsenio Cruz Herrera, and Ignacio Villamor.
Committee on reception: Messrs. Antonio Luna, Trinidad H. P. de




140


PHILIPPINE GOVERNMENT


The rules of the Spanish Cortes, slightly modified, were
temporarily adopted.71
Subsequent to organization and ratification of a declaration of independence, the principal work became the
discussion and adoption of a constitution. The Congress
is also said to have passed other laws. Unfortunately no
official record was kept of the proceedings. After the
promulgation of the constitution, the outbreak of hosTavera, Tomas G. del Rosario, Felipe Buencamino, Joaquin Gonzalez,
and Manuel Xerez.
Committee on appropriations: Messrs. Pablo Tecson, Perfecto
Gabriel, Mariano Abella, Aguedo Velarde, Mariano Lopez, Felix
Bautista, Ignacio Villamor, Hipolito Magsalin, Mariano V. del
Rosario, and Juan Nepomuceno.
Committee on festivities: Messrs. Felipe Buencamino, Tomas G.
del Rosario, Telesforo Chuidian, Lorenzo del Rosario, Jose Baza
Enriquez, Juan Nepomuceno, Salvador V. del Rosario, Fernando
Canon, Jose Alejandrino, Jose Infante, and Isidro Paredes.
Committee on style: Messrs. Trinidad H. P. de Tavera, Felipe
Calder6n, Joaquin Gonzalez, Leon M. a Guerrero, Miguel Zaragoza,
Fernando Canon, Tomis G. del Rosario, Manuel Gomez, Antonio
Luna, Jose M. a de la Vifa, Salvador V. del Rosario, and Jose Albert.
Committee to draft the constitution: Messrs. Hipolito Magsalin,
Basilio Teodoro, Jose Albert, Joaquin Gonzalez, Gregorio Araneta,
Pablo Ocampo, Aguedo Velarde, Higinio Benitez, Tomas G. del
Rosario, Jose Alejandrino, Alberto Baretto, Jose M. a de la Vifia,
Jose Luna, Antonio Luna, Mariano Abella, Juan Manday, Felipe
Calder6n, Arsenio Cruz Herrera and Felipe Buencamino. (Calder6n,
Appendix, pp. 8-10.)
71 Calder6n says on this point: "After the great celebrations on the
13th (15th) of September in commemoration of the ratification of
independence, and after the Congress had been organized, the first
thing that had to be done was the framing of the rules, and as nobody
knew what rules of Congress were, the late Dr. Joaquin Gonzalez
and I were appointed to frame the same. We believed then that it
would be more convenient temporarily to adopt the rules of the
Spanish Congress with a few modifications, and this was done accordingly." pp. 234, 235. The rules were of one hundred seventy-one
articles divided into twenty-two titles. See Kalaw, Cuestiones Parliamentarias, Vol. 3, pp. 198-217.




THE REVOLUTIONARY GOVERNMENT


141


tilities necessarily neutralized further effective labors by
the legislature.
~ 62. The Malolos Constitution,7s taking its name
from the then capital, was the enactment of first importance of the Revolutionary Congress.
Contemporary testimony relative to the Constitution
shows that the Committee on the Constitution had before
it three plans-those of Paterno, a modification of his
previous autonomy project; of Mabini, expounded in his
True Decalogue and his Constitutional Program; and
of Calderon. The project of the latter prevailed, and was
reported to Congress through its author on October 8,
1898.78 Then, after printed copies had been distributed,
there ensued a discussion article by article which lasted
for over a month-between October 25 and November
29.74  Those prominent in the debates were Felipe
Calderon, in defense, and Ambrosio Rianzares Bautista,
Joaquin Gonzalez, Tomas G. del Rosario, Arcadio del
Rosario, Ignacio Villamor, Alberto Barretto, Aguedo
Velarde, and Pablo Tecson. The religious question-a
state religion as proposed by Calder6n, or separation of
church and state advocated under the leadership of Tomas
G. del Rosario,-was the subject of the most heated debate; after the first vote had resulted in a tie, twenty-five
to twenty-five, Pablo Tecson cast the deciding vote in
favor of the amendment providing for freedom of wor72 See generally Calder6n, Mis Memorias sobre la Revolucidn Filipina; Kalaw, La Constitucidn de Malolos; Kalaw, The Constitutional
Plan of the Philippine Revolution, I Philippine Law Journal, Dec.,
1914, pp. 204-222; De Veyra and Ponce, Efemirides Filipinas, pp.
71-74; Bocobo, Felipe G. Calderon and the Malolos Constitution,
The Filipino People, September, 1914; Gullas, The Malolos Constitution, a thesis.
73 Calder6n, Appendix, p. 16. Then follows the report of the Committee (pp. 16-18).
74 See Calder6n, Appendix, pp. 18-98, for a synopsis of the debates.




142


PHILIPPINE GOVERNMENT


ship." The constitution was approved by Congress on
November 29 76 and immediately transmitted to Aguinaldo for promulgation. This the President of the Revolutionary government did not do, but, acting on the instigation of Mabini on December 1, 1898,77 returned the proposed constitution with a message 78 in which he recommended certain amendments.       The Congress, following
the report of its committee,79 prepared by Calder6n, refused to accede to these amendments. Aguinaldo approved the constitution on December 23d. On January
21, 1899, following formal passage by Congress the day
previous, Aguinaldo promulgated the constitution and
ordered that it should be "kept, complied with and executed in all its parts because it is the sovereign will of
the Filipino people." 80 Due to the war it was never
really put in force.
75 An account, with brief summaries of the discussion, will be
found in La Independencia for November 29, 30, and December 1,
1898, and in Calderon, pp. 241-245. See Le Roy, The Americans in
the Philippines, Vol. I, pp. 316, 317. Article 5, Title III, of the Constitution as passed reads: "The State recognizes the freedom and
equality of religious worship, as well as the separation of the Church
and the State."
76 Calder6n, Appendix, p. 99.
77 Calder6n, Appendix, p. 99; Ponce, supra, pp. 71-74, and Kalaw,
Documentos Constitucionales sobre Filipinas, Part 2, p. 36, citing
document 34, say December 1, 1898. Kalaw, La Constituci6n de
Malolos, and Worcester, The Philippines Past and Present, Vol. I,
p. 266, citing record 40.8, give January 1, 1899. See Mabini, La
Revolucion Filipina, p. 72.
78 Quoted in Kalaw, La Constitucion de Malolos, Appendix B.
79 Quoted in Kalaw, Appendix C; and in Calder6n, pp. 237, 238,
Appendix, pp. 99 et seq.
80 See Senate Document 138, 56th Congress, 1st session; and Mariano Ponce, Efemerides Filipinas, p. 71. In a letter to General Otis
forwarding a copy of the constitution, Aguinaldo said: "My government has promulgated the political constitution of the Philippine
Republic, which is to-day enthusiastically proclaimed by the people,
because of its conviction that its duty is to interpret faithfully the




I THE REVOLUTIONARY GOVERNMENT


143


Mabini vigorously contended that the Congress had no
right to adopt a constitution. He questioned whether
under the provisions of articles fifteen and sixteen of the
organic decree giving the powers of Congress, it had such
legal right.    He   advised  Aguinaldo    that "Congress
should not adopt a Constitution, as it was not a Constituent Assembly; nor could it enact laws, as it did not have
any legislative powers; and its principal and urgent duty
was to study the best system of organizing (the) military
forces and obtaining the necessary funds for the maintenance of the same....   Moreover, (he added) that
it was not the right time for framing a constitution, as
the independence of the Philippines had not as yet been
recognized....  (His) advice was of no avail and
was rejected    by  the  Cabinet members." 8        In  this,
Mabini was probably right in law, but wrong in fact. He
was right in showing that the time was not the best for
the drafting of a formal constitution. The testimony of
aspirations of that people-a people making superhuman efforts to
revindicate their sovereignty and their nationality before the civilized
powers.
"To this end, of the governments to-day recognized and observed
among cultured nations they have adapted the form of government
most compatible with their aspirations, endeavoring to adjust their
actions to the dictates of reason and of right, in order to demonstrate
their aptitude for civil life.
"And taking the liberty to notify your excellency, I constantly hope
that, doing justice to the Philippine people, you will be pleased to inform the Government of your nation that the desire of mine, upon
being accorded official recognition, is to contribute to the best of its
scanty ability to the establishment of a general peace.
"May God keep your excellency many years.
"EMILIO AGUINALDO."
(Hearings before the Senate Committee on the Philippines, Vol. I,
p. 823.)
81 Mabini's Writings, Vol. II, pp. 246, 247; Mabini, La Revolucion
Filipina, pp. 68-71. See Kalaw, The Constitutional Plan of the Philippine Revolution, I Philippine Law Journal, Dec., 1914, pp. 208, 209.




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PHILIPPINE GOVERNMENT


other members show him wrong in arguing that the
principal aim of the Congress was not the adoption of a
constitution. That was the avowed purpose as a matter
of policy.8
The Constitution so enacted and approved was of course
like the American and other modern constitutions, not an
entirely new creation. In the Philippines prior constitutional projects had a molding influence.8     The Cartilla
and Sanggunian-Hukuman-the charter and code of laws
and morals of the Katipunan (1896); 84 the provisional
constitution  of Biaknabato    (1897) modelled    after a
Revolutionary Constitution of Cuba; Mabini's Constitutional Program of the Philippine Republic (1898); the
provisional constitution of Mariano Ponce (1898), following Spanish constitutions; and the autonomy projects
of Paterno (1898)-all were to evolve into the Malolos
Constitution.85 Besides as the committee on the constitution said in its report: "The work whose results the
commission has the honour to present for the consideration of Congress has been largely a matter of selection;
in executing it not only has the French constitution been
used, but also those of Belgium, Mexico, Brazil, Nicaragua, Costa Rica, and Guatamela, as we have considered
those nations as most resembling the Filipino people." 86
Yet the inspiration was always Spanish constitutions and
82 See Kalaw, Cuestiones Parliamentarias, Vol. VI, pp. 4, 15.
83 Epifanio de los Santos, Biography of Trinidad H. Pardo de Tavera, p. 33.
84 Epifanio de los Santos, Biography of Emilio Jacinto; Kalaw,
The Constitutional Plan of the Philippine Revolution, I Philippine
Law Journal, December, 1914, pp. 204-206, quoting portions of the
"Cartilla."
85 See Kalaw, Constitutional Plan of the Philippine Revolution,
pp. 206, 207.
86 Calder6n, Appendix, pp. 16-18; Ponce, Efemerides Filipinas, pp.
71-74; Worcester, The Philippines Past and Present, Vol. I, p. 265,
citing record 40.1.




THE REVOLUTIONARY GOVERNMENT


145


institutions or Spanish-American constitutions. A comparison of articles of the Malolos Constitution with those
of Spain and the South American Republics will show
this.'7 The general outline of the text is borrowed from
Costa Rica, Chili, and Spain. Such influence as the Constitution of the United States had upon the Malolos document filtered through the constitutions of its Southern
neighbors. Arcadio del Rosario did indeed contend on the
floor of the Revolutionary Congress that the work of the
committee should have been moulded by the Constitution
of the American nation, which, "being the champion of
liberty, is the most democratic nation, and with which the
Filipino people are united by strong ties of friendship and
sympathy," but the reply of Calderon "that the gratitude
which the Filipino people owed the American nation did
not oblige them to adopt the institutions of the latter, taking into consideration the difference in their history,
usages, and customs, and that the country was most akin,
politically, to the South American republics, and other
Latin nations" prevailed.88   This tendency to absorb
Latin principles was natural, in fact inevitable, because of
the members' familiarity with Spanish institutions, with
what Calderon called the "religious tradition," and because of the education of the leading members.89
There has been wide divergence of opinion as to who
wrote the constitution.   The names of Mabini 90 and
87 See Bocobo, Notes, p. 29.
88 See Calder6n, Appendix, pp. 19-23, for a synopsis of the debate.
89 See Kalaw, The Constitutional Plan of the Philippine Revolution, pp. 211, 212; Le Roy, Vol. I, p. 295.
0 "It was he (Mabini) who drafted the Constitution of the Philippine Republic," (Foreman, The Philippine Islands, 3d Ed., 1906, pp.
486, 546). The discussion "ended in the adoption of practically the
same instrument as Mabini had drawn up" (Le Roy, The Americans
in the Philippines, Vol. I, p. 289).
"Senator Shafroth. Did Mabini write that constitution?
P. I. Govt.-10.




146


PHILIPPINE GOVERNMENT


Calder6n 91 have been most often mentioned as authors.92
A reading of Calderon's "Mis Memorias sobre la Revoluci6n Filipina," 9 in connection with the contents of the
Paterno plan, the attitude of Mabini, and the studious
"Mr. Quezon. He did in part. That constitution was not written
by any single person.
"Senator McLean. How large a portion of it did he write?
"Mr. Quezon. A great deal of it, I understand, as well as Calder6n."-Manuel Quezon, Resident Commissioner to the United
States, Hearings before the Committee on the Philippines, United
States Senate, Sixty-Third Congress, Third Session, p. 479.
"Q. Who wrote that constitution? A. It was voted by the congress.
"Q. But who wrote it? A. A commission.
"Q. Who composed that commission? A. Calder6n, Gonzalez,
Alberto Barreto, Tomas del Rosario, Pablo Ocampo, and, I believe,
I was a member of this commission." (Testimony of Dr. Tavera
before the Schurman Commission, Vol. II, p. 392.)
91 See Bocobo, Felipe G. Calder6n and the Malolos Constitution,
The Filipino People, September, 1914, p. 5, partly quoted in Vol. 51
Cong. Record, November 2, 1914, pp. 18774-18776; Kalaw, The Constitutional Plan of the Philippine Revolution, I Philippine Law Journal, December, 1914, pp. 204-222.
92 Also Cayetano Arellano, but without any basis of support. "He
(Arellano) prepared the constitution of the republic." Edwin Wildman, Aguinaldo-A Narrative of Filipino Ambitions, p. 364.
98 Therein Calder6n says: "The rules thus framed, having been approved with a few modifications, we proceeded to the appointment
of the different committees, and I was appointed with other members, a committee to frame the Constitution. I can perfectly remember how I found out on the first meeting of that committee that
every one of us was absolutely a stranger to everything which pertains to political and constitutional law; and from that time on I resolved to share whatever knowledge of political and constitutional
law I could gather from the teachings of my country with my companions. Mabini had framed a constitution based upon the Constitution of the Spanish Republic, with slight alterations, but after studying the same, I was convinced that it was not the most proper for
our country. On the other hand, Pedro Paterno also gave me a constitution which was identical to the Spanish Constitution of 1868,
with very slight and insignificant modifications. This constitution




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147


habits of Calderon, would leave no doubt that Felipe G.
Calderon is entitled to this honor.
A brief synopsis of the constitution H is as follows:
The preamble reads: "We, the Representatives of the
like that of Mabini did not satisfy me, because both had the same
origin, the Spanish Constitution of 1868, so I decided to make another plan which would be eclectic. As I found out that there was a
great majority in Congress favoring Paterno, for Mabini was already
beginning to lose ground on account of his intransigency, I said that
I would present the constitution framed by Pedro Paterno, and I so
told Pedro Paterno himself, who, in order to enlighten me on the
matter, told me to see Rosauro de Guzman. One night he detained
me in his house and made me sleep there to get some help from
Ricardo Regidor, whom I learned later to be the real author of the
Paterno plan. I was in a somewhat difficult situation, because I had
to satisfy my vanity and at the same time display ability in order that
I might be able to present a constitution of my own without their
noticing that I was entirely ignoring that given to me by Pedro
Paterno. Consequently, while I announced publicly that I was only
going to make a few modifications of the Paterno plan, I also devoted
myself to the study of the constitutions of all countries-a task which
I partly knew, because since I finished my law studies I have not
practiced my profession, except in 1894, but devoted my time to the
study of constitutional law, history and political economy. I outlined
my constitution, taking as a model for the organization of the government the constitutions of the South American Republics, more
especially that of Costa Rica in respect to the legislative power. On
account of the lack of clerks in Barasoain, I had to come to Manila,
and one day, I drafted, or rather three clerks, who, if I remember
rightly, were D. Mariano Icasiano, D. Hugo Anuario, and another
wrote the different points which I had already made for the draft of
the constitution in J. Cuadra's drug store, Ermita.
'The draft was approved by the committee with slight modifications, although we found opposition among Mabini's followers who
voted for the draft prepared by him." (pp. 234-237.)
4 Published in Tagalog in the "Heraldo Filipino," official organ of
the Revolutionary Government, last installment on February 5, 1899.
See Harper's History of the War in the Philippines, p. 106, for facsimile. Appears in English as Appendix C to the Hearings before the
Committee on the Philippines, United States Senate, Sixty-Third
Congress, Third Session; as Exhibit IV, Vol. 1, Report of the Phil



148


PHILIPPINE GOVERNMENT


Filipino People, lawfully convened, in order to establish
justice, provide for common defense, promote the general welfare and insure the benefits of liberty, imploring
the aid of the Sovereign Legislator of the Universe for
the attainment of these ends, have voted, decreed, and
sanctioned the following:" The constitution then organizes the Filipino State called the Philippine Republic,
sovereignty residing exclusively in the people. The national and individual rights of Filipinos and aliens are
specified.  The Bill of Rights includes freedom  from
arbitrary arrest and imprisonment; the writ of habeas
corpus; sanctity of domicile, prohibition of criminal
prosecutions unless by a competent court and according
to law; freedom to choose one's domicile; inviolability of
correspondence; inviolability of private property and
right of possession, reserving to the government the right
of eminent domain by reason of public necessity and after
proper indemnity; freedom from paying any tax not
legally prescribed; freedom of speech and press; freedom of conscience; right to form associations; right to
petition; right to establish educational instruction; obligatory and free popular education; the obligation to defend
the country and to contribute to the expense of the state;
prohibition of titles of nobility from foreign nations
without authorization of the government; illegality of entailing property. "The law of the land" is mentioned.
For every right there is a corresponding guaranty for its
enforcement.  The constitution also provides that "the
enumeration of the rights granted in this title does not
imply the prohibition of any others not expressly stated."
A government is established, which is popular, representative, alternative, and responsible, with three powers
ippine Commission, 1900; and in Senate Document 208, Part I, p. 207.
See Kalaw, La Constitucion de Malolos, 1910, containing as an appendix an official copy of the constitution.




THE REVOLUTIONARY GOVERNMENT


149


called the Legislative, Executive, and Judicial. The Legislative Power is exercised by the Assembly of Representatives, whose members are to be elected according to law,
as representatives of the whole nation, with the right of
censure and interpellation. During the time the Assembly is not in session, there is a Permainent Commission.
The Executive Power is vested in the President of the
Republic, through the Secretaries of the government. The
President is elected by the Assembly of Representatives
and the special Representatives (as to who these are, the
constitution is silent) convened as a Constituent Assembly; the President may initiate laws like the members of
the Assembly, and is only responsible in case of high
treason.  The Secretaries of the government with the
President constitute the Council of the government.
There are seven portfolios, Foreign Affairs, Interior,
1Finance, War and Navy, Public Instruction, Public Communications and Works, and Agriculture, Industry and
Commerce. The Secretaries are jointly responsible to the
Assembly, for the general policy of the government, and
individually for their personal acts. The Judicial Power
is vested in the Supreme Court of Justice and in the
courts organized by the laws. The Chief Justice of the
Supreme Court and the Solicitor General are chosen by
the National Assembly with the concurrence of the President of the Republic and the Secretaries of the government. The organization of the provincial and municipal
assemblies is governed, briefly, by the following principles: (1) The government and direction of the interests of each province or town by their respective corporations; (2) Intervention by the central government, or
by the National Assembly, in case they exceed their
powers; and (3) Popular and direct elections. Amendments to the constitution originate with the Assembly
with power to adopt in the Constituent Assembly. Tran



150


PHILIPPINE GOVERNMENT


sitory articles to cover the then existing extraordinary
situation are appended.95
Not to attempt to indite commentaries on a constitution
which was never in force, there are certain unique and
outstanding features therein which should at least be
mentioned.    Among these are the unicameral system,96
95 See Kalaw, The Constitutional Plan of the Philippine Revolution, p. 213. A more extended analysis is given by Professor Bocobo
in his monograph, Felipe G. Calder6n and the Malolos Constitution,
the Filipino People, September, 1914, pp. 8, 9, 27, 28; in Gullas, The
Malolos Constitution, a thesis; and in Kalaw, La Constitucion de
Malolos.
96 As to why the unicameral system was preferred, Calder6n says:
"The reasons which impelled me to do this were purely of local character and may be summed up as follows:
"1. That in the Philippines there does not exist different interests
which would have to struggle and be heard in the formation of the
laws, like that which is happening in the European monarchies where
there is an aristocracy of blood, of wealth, or of intellect, as against
the interests of the people, or like that in the United States where
the Senate represents the interests of the federation while the House
of Representatives represents the interests of each one of the States.
In our country, none of these exists, and this is why I did not believe
it necessary to form two chambers.
"2. A country in the process of formation like ours had to meet insurmountable obstacles, and if there should be two chambers, the
management of our affairs would be retarded somewhat, while by
having just a single chamber many obstacles would be overcome.
"3. The lack of personnel, which made me fear that if there should
be two chambers, we would not find sufficient persons who could
occupy the positions in both chambers." (pp. 240, 241.)
The following have adopted the unicameral system: France (1848);
Guatemala (1879); Honduras (1880 and 1894); Santo Domingo
(1880); Salvador (1886); Nicaragua (1893); Costa Rica (1871 and
its amendments), etc. Kalaw, La Constitucidn de Malolos, p. 22. A
constitution of Spain providing for a single chamber had served as a
rmodel for South American countries. The Greeks, Romans, and
English also had at first only a single law-making body. The previous provisional Philippine Revolutions had provided for but one
chamber.




THE REVOLUTIONARY GOVERNMENT


151


the establishment of the Permanent Commission,97 ministerial responsibility, central intervention in local administration,98 the taking of the properties of the religious
orders-and most important of all the dominance of the
Legislative Power. Reasons of local character impelled
such innovations. If one wished most could be justified
on broader grounds. Thus the unicameral system, which
is more natural than accidental, has many merits.  Excepting intervention and the religious question, the central and all pervading idea was to insure the predomtinince
of the lcgislature. In the words of Calderon:
"While I proclaimed the principle of the separation of
powers, I conferred upon the legislature such amplle
powers in the constitution that in reality it had the power
of supervision over the executive and judicial branches;
and in order to make this supervision more effective, in
imitation of the constitution of Costa Rica, I established
Twhat is known as the Permanent Commission, i. e., a
committee composed of members of Congress who are
to assume all the powers of the same while not in session,
with sufficient powers to adopt any urgent measures in
case of emergency; in a word, it can be said that the Congress of the republic was the supreme power (poder
nmnimnodo) in the whole nation.... Having in
mind that, should we become independent, we would have
for a long time an oligarchical republic in which the military element, which is ignorant as a whole, would pre97The Permanent Commission also came from South America.
The idea of a Permanent Commission was seen in the old Constitutions of Spain of 1812 and 1856, in that of France of 1848, and in
some Latin republics like Mexico (1857 as reformed); Guatemala
(1879); Chile (1833 as reformed); Peru (1860); Costa Rica (1871
as reformed); etc. Kalaw, La Constitucion de Malolos, p. 27.
98 See Philippine Affairs, A Retrospect and Outlook, An Address
by Jacob Gould Schurman, President of the First Philippine Commission, before the members of Cornell University, pp. 31, 32.




152


PHILIPPINE GOVERNMENT


dominate, in order to check this oligarchy, I preferred to
neutralize it by an intellectual oligarchy, since the Congress was composed of the most intellectual classes of our
country. This is the reason why I conferred upon the
legislature such ample powers, not only in the field of
legislation but also in the supervision of the executive
and judicial branches.  In a word, between the two
oligarchies, I preferred the intellectual oligarchy of the
many to the ignorant oligarchy." "
One need not agree with the fulsome eulogy of the
framers of the constitution of even so eminent an authority as Senator Hoar that "there are not ten men on the
planet who could have made one better," 100 in order to do
justice to the Malolos Constitution. It should be remembered in judging its merits and demerits that it was intended to be provisional, was drafted by men inexperienced in grave constitutional problems, and was flung together in a most stressful time. Moreover, many provisions, which to an American observer would seem
strange, to the Filipino were natural and fitting. Were a
constitution to be drafted to-day by a Filipino constitutional convention, it is most unlikely that you would find
a unicameral system included and such undue power
given to the legislature.  Yet the constitution did conform to many of the tests of a good written constitution.
And it did faithfully portray the aspirations and political
ideals of the people. As the leading student of its provisions in the conclusion of his work has said: "In spite
of the circumstances which then existed, when it seemed
as if nothing could stand, when everything was tottering
in its foundations, when the very secular institutions and
99 Calder6n, pp. 239, 240. Mabini although of the opposite party
reached much the same conclusion in his "Political Trinity."
100 Quoted in Robinson, The Philippines: The War and the People,
p. 52.




THE REVOLUTIONARY GOVERNMENT


153


all which with more zeal respected the past was threatened
with death and destruction, it was yet possible to frame
with serenity and rectitude a Constitution, which was reflexive, rigid, formal, alone in its class, a beautiful and
imperishable document which constitutes, according to
the Message of Aguinaldo, 'the most glorious token of
the noble aspirations of the Philippine Revolution and an
irrefutable proof before the civilized world of the culture
and capacity of the Filipino people for self government,'
a Constitution which established-one is forced to admit
-in spite of its being provisional, the first democratic
republic in the Orient, for even the Constitution of Japan
of the year 1889 can not resist a favorable comparison
with the provisional Constitution of Malolos." 10
~ 63. Governmental activities.-Practically the entire Spanish system of taxation was continued.     Personal
contributions were received.    Bonds were issued.    In the
annual budget of February 12, 1899, revenues were estimated at over six million pesos.102
The government on its part, without neglecting provision for war, organized the most important and urgent
101 Kalaw, La Constitucidn de Malolos, p. 33.
102"..  Taylor's Rept. contains the only important data
thus far published regarding the sources of revenue of the Government (see pp. 15-19, 56-101; also the briefs of decrees, 37-51); and
these data are very incomplete. They show that the central Government should have received, from May 31, 1898, to September 1, 1899,
2,586,733.48 pesos; but there is discrepancy between this sum and the
actual receipts, as recorded in the final ledgers, of some 530,000 pesos,
while over 700,000 pesos are not traceable, in the accounts available,
to any particular province...   Captain Taylor finds that 6
per cent bonds for at least 500,000 pesos were issued, in denominations of 25 and 100 pesos....The annual budget, approved
by Aguinaldo, under his war powers, on February 12, 1899, just after
the outbreak of war with the United States (see pp. 68-77), shows
an approach to systematization of taxes and revenues; these were
estimated to be 6,324,729.38 pesos." Le Roy, The Americans in the
Philippines, Vol. I, p. 312, note.




154


PHILIPPINE GOVERNMENT


public services. A corps of civil physicians to watch over
sanitation was established.   A   civil register in all the
municipalities was created. The chiefs of the municipalities were authorized to act provisionally as notaries in the
authentication  of   documents   and   extrajudicial acts.
There was founded a university to teach law, medicine,
and pharmacy, the Instituto Burgos for studies of the
general high school class, and there was ordered the reopening of all the municipal primary schools.      All the
provincial councils were directed to proceed to the repair
and preservation of roads, bridges, and public buildings.
There was created an institute for vaccination to prepare
and distribute vaccine to all the provinces. There was
established a bureau of census and statistics. There was
organized a corps of communications to regulate the sending of correspondence and telegraphic dispatches between
the towns and provinces.'03
Local administration was provided for in the decrees
of June 18 and 20, 1898. Municipal and provincial elections were held in accordance therewith.      With a few
changes in names the system was that already in existence
under Spain.1'4
103 See Special Report of Secretary of War Dickinson, Appendix C.
104 Le Roy, The Americans in the Philippines, Vol. I, pp. 304, 305.
Mr. Worcester, The Philippines Past and Present, Vol. I, pp. 246, 247,
citing record 206.3, says on the subject: "In brief,... as soon
as the territory of the archipelago, or any portion thereof, had passed
from the possession of Spanish forces, the people in the towns who
were most conspicuous for their intelligence, social position and upright conduct were to meet and elect a town government. The heads
of the towns in every province were to elect a head for the province
and his three counsellors. The provincial council, composed of these
four officials, with the presidente of the capital of the province, were
to see to the execution in that province of the decrees of the central
government and to advise and suggest.
"This provincial council was to elect representatives for the revolutionary congress, which was to be charged with submitting sugges



THE REVOLUTIONARY GOVERNMENT


155


~ 64. Class of government.-From          the standpoint
of international law, the Filipino government was of the
class known as a "de facto government." This was
authoritatively held by Mr. Justice Day speaking for the
United States Supreme Court in the case of Macleod v.
United States.'06 Had such a government been established, rebellion and insurrection would have passed into
revolution and all its acts from the beginning would have
been valid; as it failed, it rested on no legal foundation
and those engaged in the uprising were responsible before
the law.'~6 The political struggle moreover did not attain
to such magnitude as justified recognition of belligerency
by a foreign power.'07
~ 65. Character of government.-Various gratuitous epithets have been used to characterize the Revolutionary government,-"a bouffe government;" '0 "a tintions to the central government upon interior and exterior affairs,
and was to be heard by the government upon serious matters which
admitted of delay and discussion.
"Before any person elected to office was permitted to discharge his
functions, his election was to be approved by the central government.
The military commanders, except in time of war, were to have no
jurisdiction over the civil authorities. They could, however, demand
such supplies as they might need, and these could not be refused.
The government was to appoint commissioners to carry these regulations into effect."
105 229 U. S. 416, 57 L. Ed. 1260 (1912), following Thorington v.
Smith (1869) 8 Wall. 1, 9, 19 L. Ed. 361, 363. See Endencia v.
Loalhati (1907) 9 Phil. 177.
106 See I Moore, International Law Digest, pp. 41-45; Williams v.
Bruffy (1877) 96 U. S. 176, 185, 24 L. Ed. 716, 717.
107 I Moore, International Law Digest, ~ 59; Woolsey, The Legal
Aspects of Aguinaldo's Capture, 67 Outlook, April 13, 1901, p. 855;
Warner, Barnes & Co. v. U. S. (1905) 197 U. S. 419, 49 L. Ed. 816.
But see Agoncillo's Memorial to the Senate, of January 30, 1899,
contending that the Philippine Republic was entitled to recognition
-quoted in Kalaw, The Case for the Filipinos, pp. 64-78.
108 Williams, The Odyssey of the Philippine Commission, p. 3.




156


PHILIPPINE GOVERNMENT


horn government;" 109 "the paper government of the Filipinos." 10 Most vigorous condemnation comes from the
first American Civil Governor-"While we were there
the Filipinos had a government under Aguinaldo of five
or six months,-perhaps a little longer,-and there never
was in the history of those islands, in the palmiest days
of Spanish tyranny, such corruption, such tyranny, such
a want altogether of a decent government, as there was
under Aguinaldo, demonstrating to those who were there
that it was absolutely impossible to turn the islands over
to that government, or to those people at that time."11'
The effort palpably apparent is to prove by such assertions
that since the Revolutionary government was a failure,
or in truth constituted no government at all, therefore
self-government and independ(ence are absurd and preposterous aspirations.
On the other extreme are those who wildly exaggerate
Filipino capacity during this period in order to substantiate present capacity. To them it would seem that
the only Republic in Asia, set up by the only Christian
people in the East, was crushed-a genuine government
of promise extinguished.""'
In point of fact the real character of the government
established by the Filipinos is obscured by conflicting
testimony and by the meagerness of the evidence made
public.2s Yet certain points appear undeniable.
109 Senator Spooner quoted in Blount, American Occupation of the
Philippines, p. 169.
10 Le Roy, Philippine Life in Town and Country, p. 260.
11 Taft, A Republican Congress and Administration, and Their
Work from 1904 to 1906, printed in Present Day Problems, p. 140.
1lla See speeches of Senator Hoar and his Autobiography of Seventy Years, Vol. II, pp. 317, 318.
112 Major Shelton, then Assistant to the Chief of the Bureau of Insular Affairs in an address at the Lake Mohonk Conference in Octo



THE REVOLUTIONARY GOVERNMENT


157


Between the downfall of Spanish authority after the
Battle of Manila Bay and the American military occupation in the spring of 1899, there was an interim of about
a year. During this period, with the exception of Manila
and Cavite and the few towns actually held by the Spanish
forces, the Filipino government was in control of almost
the entire archipelago. This authority which first extended only over the Island of Luzon, finally reached to
the other Islands even to Mindanao.         In the careful
language of the United States Supreme Court in February, 1899, "a so-called republic... administered
the affairs" of the Island of Cebui.18 Direct intervention
was possible in Luzon, but in the other Islands, while
ber, 1912, after an examination of the documents on file in the War
Department captured from the Filipino forces, gave as his judgment:
"The government of Aguinaldo was not complete. It did not have
all the forms of government. It did not extend over all, or even
over a considerable part, of the archipelago at the same time. It was
not republican in any way whatsoever. It was an oligarchy of an extreme type. Control rested in a little group of educated, ambitious,
and powerful natives, mostly of mixed blood, surrounding Aguinaldo,
guiding him and possibly dominating him, and exercising its authority wherever necessary by force, often employing cruelty, and not
hesitating even at the employment of assassination to preserve its
power. It is true that representative government was promised, but
the promise was never kept. It is true that a congress was assembled,
but the selection of its members made the forms of popular government a mockery. It is true that a constitution was finally published
-it was never promulgated-but it was published only after General
Otis, on January 4th, 1899, issued his proclamation announcing that
the government of the United States would be extended over the
Islands, and it was apparently published then only to deceive the
Americans by establishing in their minds the belief that the Filipino
peoples were prepared to govern themselves under forms that Americans loved."
11Macleod v. United States (1912) 229 U. S. 416, 57 L. Ed. 1260,
1262.




158


PHILIPPINE GOVERNMENT


there was adherence to the central government, yet local
administration was practically independent of control.11
When one passes on to the next point-the support of
the masses of the people, there is absolute contradiction
114 A vast amount of evidence corroborates the above statements:
A. Filipino:
"The said revolution now rules in the provinces of Cavite, Batangas, Mindoro, Tayabas, Laguna, Morong, Bulacan, Bataan, Pampanga, Nueva-Ecija, Tarlac, Pangasinan, Union, Infanta, and Zambales, and it holds besieged the capital of Manila. In these provinces
complete order and perfect tranquillity reign, administered by the
authorities elected by the provinces in accordance with the organic
decrees dated 18th and 23d of June last." Proclamation of Aguinaldo of August 6, 1898, printed in Republic or Empire, Appendix, pp.
742, 743.
"America is in actual possession at this time of one hundred and
forty-three square miles of territory, with a population of 300.000,
while the Philippine Government is in possession and control of
167,845 square miles, with a population of 9.395,000."  Agoncillo,
Memorial to the U. S. Senate of January 30, 1899.
"The sudden and general movement destroyed at a stroke the order
established by the Spanish administration in the provinces and towns
of the Archipelago." Mabini, La Revolucion Filipina, p. 65.
"The fact that nobody denies is that the authority of that Filipino
government extended all over the archipelago, including the island of
Mindanao and the Moro country."   Manuel L. Quezon, Resident
Commissioner to the United States, Hearings before the Committee
on the Philippines, United States Senate, Sixty-Third Congress,
Third Session, p. 479.
B. Army and Naval Officers.
General Merritt states in his report (Vol. I, Part 2, War Department report for 1898) that Aguinaldo had "proclaimed an independent government, republican in form, with himself as President, and
at the time of my arrival in the Islands the entire edifice of executive
and legislative departments had been accomplished, at least on
paper."
General Anderson says: "We held Manila and Cavite. The rest of
the island was held not by the Spaniards, but by the Filipinos. On
the other islands, the Spaniards were confined to two or three fortified towns." "Our Rule in the Philippines," 170 No. Am. Rev., Feb.,
1900, p. 281.




THE REVOLUTIONARY GOVERNMENT


159


between Filipino and American authorities.        So Mabini
said: "\We think we have sufficiently proved        that the
revolution is not the work of a few idealists or ambitious
persons, but that it was that of the people themselves, and
"His (Aguinaldo's) success was not in the least astonishing, as
after the various islands had driven out the few remaining and discouraged soldiers of their openly declared enemy, they naturally
turned to Luzon for some form of central government, the islands of
the south being well aware of their inability to maintain successful
separate and distinct political establishments. The crude one in process of formation in central Luzon offered itself through its visiting
agents and was accepted in part (notwithstanding race animosities
and divergent business interests), and very probably because no other
alternative was offered. The eight months of opportunity given the
ambitious Tagalo by the hold on Spain which the United States maintained was sufficient also for him to send his troops and designing
men into the distant provinces and hold the unarmed natives in subjection while he imposed military authority, and thus in December,
1898, we find in Northern and Southeastern Luzon, in Mindoro,
Samar, Leyte, Panay, and even on the coast of Mindanao and in some
of the smaller islands, the aggressive Tagalo present in person, and,
whether civilian or soldier, supreme in authority." Report of General Otis, August 31, 1899, quoted in Harper's History of the War in
the Philippines, pp. 99, 100.
"It cannot be denied that, in a region occupied by many millions of
inhabitants, for nearly six months it (the revolutionary government)
stood alone between anarchy and order. The military forces of the
United States held control only in Manila, with its environs, and in
Cavite, and had no authority to proceed further; while in the vast
remaining districts the representatives of the only recognized power
on the field were prisoners in the hands of their despised subjects.
It was the opinion at Manila during this anomalous period in our
Philippine relations, and possibly in the United States as well, that
such a state of affairs must breed something akin to anarchy. I can
state unreservedly, however, that Mr. Wilcox and I found the existing conditions to be much at variance with this opinion. During our
absence from Manila we travelled more than 600 miles in a very
comprehensive circuit through the northern part of the island of
Luzon, traversing a characteristic and important district. In this
very way we visited provinces, of which some were under the immediate control of the central government at Malolos, while others




160


PHILIPPINE GOVERNMENT


also that the people do not sustain it unconsciously and
instigated only by a few individuals, but that they know
full well and since long years back what they are fightwere remotely situated, separated from each other and from the seat
of government by natural division of land, and accessible only by
lengthy and ardous travel. As a tribute to the efficiency of Aguinaldo's government and to the law-abiding character of his subjects I
offer the fact that Mr. Wilcox and I pursued our journey throughout
in perfect security, and returned to Manila with only the most pleasant recollections of the quiet and orderly life which we found the
natives to be leading under the new regime." L. R. Sargent, 63 Outlook, September 2, and 23, 1899, pp. 17, 202, quoted in Senate Document 66, 56th Congress, 1st Session. (W. B. Wilcox and L. R. Sargent, two American naval officers, made an extended trip through
Northern Luzon, in the autumn of 1898.)
C. Various.
"It is little short of marvellous how rapidly the insurrection has
gained ground in this short time, and how extensive and successful
the operations of the army have been. The insurgents managed in a
very few weeks to besiege and capture numerous small Spanish posi-.
tions in the provinces, and they completely overran the whole island
of Luzon, together with seven adjacent islands." F. D. Millet, The
Filipino Republic, September 16, 1898, printed in Harper's History of
the War in the Philippines, pp. 65, 66.
"By December, 1898, the revolutionary government was in control
of almost the entire archipelago." McKinley, Island Possessions of
the United States, p. 234.
"He (Aguinaldo) has organized a government which has practically been administering the affairs of that great island (Luzon)
since the American occupation of Manila." John Barrett in an address at Shanghai, January 12, 1899.
"The revolutionary government was universally recognized
throughout the Islands, except in Manila and seaports still held by
the Spanish." Edwin Wildman, Aguinaldo-A Narrative of Filipino
Ambitions, p. 142.
"Under the treaty of peace, signed in Paris, the Americans became
nominal owners of the evacuated territories, but they were only in
real possession, by force of arms, of Cavite and Manila. The rest of
the Archipelago, excepting Mindanao and the Sulu Sultanate, was
virtually and forcibly held by the natives in revolt." Foreman, The
Philippine Islands (3d Ed., 1906), p. 478.
Albert G. Robinson, the Philippines correspondent for the New




THE REVOLUTIONARY GOVERNMENT


161


ing for, and by what aspirations they are impelled to it.
The very sorrow and indignation they felt over the abuses
and questionable acts of some of the insurgent leaders go
York Evening Post, during portions of 1899 and 1900, expresses the
opinion that "the Philippine Islands, with the exception of the besieged city of Manila, were virtually in the hands of the Filipinos."
And again to the same effect that "it is now known that at the time
of the arrival of the American army in Manila in June, 1898, almost
the entire area of the Philippines, practically all with the exception of
one or two of the larger coast cities, was in the hands of the insurgents. Not only were they in control of the country; they were administering its political affairs as well. This they continued to do for
the greater part of the island throughout the following year, practically until the autumn of 1899. Up to that time the territory occupied by the forces of the United States in the island of Luzon was
confined to a very limited area in the vicinity of Manila, with a filamentary extension northward for some fifty or sixty miles along the
MIanila-Dagupan railway. Very much the same condition obtained
on the other islands. One thing is certain: although greatly disturbed by the conditions of war, this territory was under some form
of governmental administration."
Finally quoting a letter of his, dated September 27, 1899, to the
New York Evening Post he states:
"There is one point which I think is not generally known to the
American people, but which is a very strong factor in the question
of Filipino self-government, both now and in any future position. In
the West Indies the greater number of offices and official positions
were filled by Spaniards, either native-born or from the Peninsula.
In the Philippines the percentage of available Spaniards for minor
positions was vastly less than that shown in the West Indian colonies. The result was that while the more prominent and more profitable offices in the Philippines were filled by Spaniards, many of the
minor offices in the larger cities and most of those in the country were
held by Filipinos. Therefore, when the Filipino party assumed the
government for those districts which the Spaniards evacuated, the
Filipinos had a system of government in which Filipinos held most of
the positions, already established for their purposes. It was but
necessary to change its head and its name. Instead of being dominated by the agents of Alfonso XIII, por la gracia de Dios y de la
Constitucion Rey cat6lico de Espaia, the same machinery was set in
motion and controlled first by the dictatorial government and then
by the Philippine revolutionary government, under the Constitution
P. I. Govt. 11.




162


PHILIPPINE GOVERNMENT


to prove our statement." 115 So President Schurman said:
"The Tagalog insurgents and their Philippine Republic
did not represent the inhabitants of the Philippine Islands,
but only a minority of them." 116 An impartial view, takproclaimed on June 23, 1898. This fact simplified matters for the
Filipinos and gave them the ground upon which they make their assertion of maintaining a successful administration in those provinces
which they occupied." Robinson, The Philippines: The War and the
People, pp. 48, 282, 403, 404.
116 Quoted in Harper's History of the War in the Philippines, January 11, 1900, p. 28. "They tell you that the government of the Philippine Republic had never been recognized by the whole country.
This is a manifest falsehood, because it had been recognized even by
the Mohammedans in the South, whom the Imperialists, their friends
and allies, boast so much of having reduced to submission; and by
the mountain races of Luzon, who always refused to recognize the
Spanish Government and who will do the same to the American
Government. The Filipino Government is the only one which can
conciliate and redeem them, for in that government only have they
confidence-a success for civilization which Imperialism could never
accomplish."  G. Apacible, June, 1900, in an address "To the
American People," pp. 11, 12; Apacible, 63 Outlook, Dec. 2, 1899,
p. 835.
"The authority of the revolutionary government was extended in a
few months to all the islands composing the archipelago by express
recognition of their inhabitants. It was questioned in no part of
Luzon, the Visayas, or of Mindanao after the people were delivered
from the Spaniards. The chiefs of the various non-Christian tribes
of the north of Luzon who never submitted to Spanish domination
sent messages acknowledging the government then established.
Prominent Mohammedan chiefs of the island of Mindanao gave
their spontaneous and sincere adhesion." Letter of the Nacionalista
Party, September 1, 1910, Appendix C, Special Report of Secretary
of War Dickinson.
116 Philippine Affairs, A Retrospect and Outlook, An Address by
Jacob Gould Schurman, President of the First Philippine Commission, before the members of Cornell University, pp. 7, 20. Mr.
Albert G. Robinson, in a letter to his paper, the New York Evening
Post, on December 18, 1899, said: "It was duly recognized and supported, heartily and willingly, by many thousands. Others accorded
but a half-hearted recognition, some objected to it and many were




THE REVOLUTIONARY GOVERNMENT


163


ing into consideration the large number of Filipinos under
arms, the local governments giving allegiance, the difficulties encountered by American officials, and prior conditions in remote regions, leads to the conclusion that in
the Northern provinces, the Moro country, and in isolated
spots as in Negros there was manifest indifference to the
cause, but that in all the rest of the Archipelago, the Filipino govrnment had the earnest support of the people.
Aside from these two points there is to the credit of
the Revolutionary government that while oligarchy and
dictatorship were military necessities, all possible steps
leading to civil government were taken. Admirable was
the constitution then drafted.   Statesmanlike were the
proclamations issued.   "If they were found in our own
history of our own revolutionary time we should be proud
to have them stand by the side of those great state papers
which Chatham    declared were equal to the masterpieces
of antiquity." 117
After all, any attempt to draw dogmatic deductions
from the history of the Revolutionary government which
will assist in settling the Philippine question would be
foolish. Born of a revolution, it lived in the atmosphere
of a revolution. Time for calm reflection and deliberate
action could not be taken. The services of a number of
the most distinguished leaders were lacking. Except as
showing a love for constitutional liberty and a desire for
independent existence, neither gross incapacity nor great
capacity for governmental administration was proved.
indifferent." Robinson, The Philippines: The War and the People,
pp. 115, 116.
117 Senator Hoar, quoted in Sawyer, The Inhabitants of the Philippines, pp. 119, 120. Disposiciones del Gobierno Revolucionario de
Filipinas. English versions of these documents are in part to be
found in Sen. Doc. 62, pp. 431-39; Sen. Doc. 208, 56th Cong., 1st
Sess., part 1, pp. 88-101, and part 3, p. 2; Bureau of Navigation, pp.
104-05, 111-19, and in various other books and documents. In the
War Department are filed some 60,000 documents of this period.




164


PHILIPPINE GOVERNMENT


REPRESENTATIVE AUTHORITIES.
Felipe G. Calderon, Mis Memorias sobre la Revolucion
Filipina (1907).
Emilio Aguinaldo, Resena Veridica de la Revoluci6n
Filipina (True Review of the Philippine Revolution),
1899, Vol. 35 Cong. Rec., Part 8, App., p. 440.
Apolinario Mabini, La Revolucion Filipina (Guam,
1902). Mabini's "Manifesto" and Ch. X of his "The
Filipino Revolution," published in XI. American Historical Review, 1906, pp. 843 et seq., and in El Comercio,
July 23, 29, 30, 1903.
Apolinario Mabini, A Filipino Appeal to the People of
the United States, 170 North American Review, January,
1900, p. 54.
Ideas Politicas de Mabini, compiled by Kalaw.
Teodoro M. Kalaw, Cuestiones Filipinas; Kalaw, Cuestiones Parliamentarias-both compiled but not published.
Teodoro M. Kalaw, Documenttos Constitucionales
sobre Filipinas, Part 2, (1916) mimeographed.
Taylor's Report quoting "Disposiciones del Gobierno
Revolucionario de Filipinas" termed "P. I. R."-documents captured from the Revolutionary Government,
some 60,000 in number, to be found in the War Department at Washington and in the office of the Philippine
Constabulary at Manila, but not open to public inspection.
Portions are cited by Le Roy and Worcester.
Senate Document 62, 55th Congress, 3rd Session;
Senate Document 208, 56th Congress, 1st Session.
Manuel Sastr6n, La Insurreccion en Filipinas y Guerra
Hispano-Americana en el Archipielago (1900).
Craig-Benitez, Philippine Progress Prior to 1898
(1916).
F. D. Millet, The Expedition to the Philippines (1899),
pp. 49, 50, 261-267.
Harper's History of the War in the Philippines
(1900).




THi REVOLUTIONARY GOVERNMENT


165


Albert G. Robinson, The Philippines: The War and
the People (1901).
Edwin Wildman, Aguinaldo-A Narrative of Filipino
Ambitions (1901), especially pp. 46, 81, 93, 142.
Leonard R. Sargeant, 63 Outlook, September 3 and 23,
1898, pp. 17, 202.
General Anderson, Our Rule in the Philippines, 170
North American Review, February, 1900, p. 272.
General Funston, Memories of Two Wars (1914),
Chs. VII., VIII.
John Foreman, The Philippine Islands (3rd Ed.,
1906), Chs. XXII., XXIII., XXIV.,XXV., XXVII.
James A. Le Roy, The Americans in the Philippines
(1914), Chs. III., IV. (pp. 201-209), VII., VIII., X.
James H. Blount, The American Occupation of the
Philippines (1912).
Dean C. Worcester, The Philippines Past and Present
(1914), Chs. II., VIII.
Epifanio de los Santos, Biography of Emilio Jacinto.
Mariano Ponce, Sobre Filipinas, in Builders of a Nation (1914), pp. 17-52.
Jaime C. de Veyra and Mariano Ponce, Efemncrides
Filipinias (1914), pp. 4, 5, 71-74.
Teodoro M. Kalaw, La Constitutcion de Malolos
(1910).
Teodoro M. Kalaw, The Constitutional Plan of the
Philippine Revolution, 1 Philippine Law Journal, December, 1914, pp. 204-222.
Jorge Bocobo, Felipe G. Calderon and the Malolos
Constitution, The Filipino People, September, 1914.
Paulino Gullas, The Malolos Constitution (1916) a
thesis.
MacLeod v. United States (1912) 229 U. S. 416, 57
L. Ed. 1260.
Warner, Barnes & Co. v. United States (1905) 197
U. S. 419, 49 L. Ed. 816.




CHAPTER 5.


GOVERNMENTAL STEPS 1 UNDER THE AMERICAN
ADMINISTRATION.
First Step-Acquisition.
~ 66. The treaty of Paris.
67. Reasons for retention.
68. Title to the Philippines.
Second Step-Presidential Government Instituted.
69. Military rule.
Third Step-Investigation and Conciliation.
70. The first Philippine commission.
Fourth Step-Filipino Co-operation.
71. The federal party.
Fifth Step-Quasi-Civil Gozernment Begun.
72. The second Philippine commission.
Sixth Step-Change from Presidential (Military) to
Congressional (Civil) Government.
73. The Spooner amendment.
Seventh Step-Civil Government Established.
74. Civil governor inaugurated.
75. Civil organization completed.
Eighth Step-Extension of Popular Self-Government.
76. Filipino participation.
Ninth Step-Autonomy.
77. The Jones bill.
1 "Steps." This word has been used designedly. It epitomizes
American Philippine policy. It is remarkable also the number of
times that it can be found in the writings of those in authority. See
~ 76 infra, note.
166




GOVERNMENTAL STEPS                     167
Tenth and Last Step-Philippine Independence.
78. The so-called Philippine problem.
Resume.
79. American Philippine policy.
80. Outline of present administration.
First Step-Acquisition.
~ 66. The Treaty of Paris.2-A protocol of peace 
between the United States and Spain was signed on
August 12, 1898 (August 13, 5:30 A. M., Manila time),
or a few hours before the capture of the city of Manila.
One of its terms authorized the United States to "occupy
2 See generally S. Doc. No. 62, 55th Congress, 3d Session; S. Doc.
No. 148, 56th Congress, 2nd Session; Foreign Relations, 1898, 1899;
Spanish Diplomatic Correspondence and Documents, 1896-1900, Presented to the Cortes by the Minister of State; I Moore, International
Law Digest, pp. 521-532; Le Roy, The Americans in the Philippines,
Vol. I, Ch. IX; Rear-Admiral Chadwick, The Relations of the United
States and Spain, Vol. II, Chs. XX, XXI; Lodge, The War with
Spain, Chl. XI; John W. Foster, American Diplomacy in the Orient,
Ch. XIII; Jose Gil, The Treaty of Paris, unpublished thesis.
8 Insofar as the preliminary peace negotiations concerned the Philippines, they were as follows:
On July 18, a telegram was sent to M. Cambon, the French Ambassador at Washington, that Spain would be disposed to accept any
solution that would conduce to the pacification of Cuba. This was
immediately followed by another, "very confidential," in explanation
of the former. It said: "... I will feel much obliged to your
excellency if on this point you investigate the dispositions of Mr.
McKinley regarding Puerto Rico and the Philippines." A Spanish
message of July 22 was answered by the secretary of state, on July
30. The'reply expressed the satisfaction of the president in receiving
the Spanish proposal and stated the United States would require
"... Third... the United States is entitled to occupy and
will hold, the city, bay, and harbor of Manila pending the conclusion
of a treaty of peace which shall determine the control, disposition and
government of the Philippines... " The French Ambassador
telegraphed on July 31 the conversation that he had the day before
with the President, who had invited him "to make any observations




168


PHILIPPINE GOVERNMENT


and hold the city, bay, and harbor of Manila, pending the
conclusion of a Treaty of Peace which shall determine
the control, disposition and government of the Philippines."
which the demands formulated by the United States might suggest."
After mentioning Spain's fear of the danger to Cuba of premature
independence and Spain's willingness to leave the question of Cuba
entirely in the hands of the United States, he said:
"... A fortiori, I added, the demands formulated in article
III, are for the purpose of compromising in Madrid the success of
this preliminary negotiation-above all if between the words control and government of the Philippines is maintained the word possession which appears to place in doubt from now on the sovereignty
of Spain over this colony. 'You will observe,' the president of the
republic then remarked to me, 'that my demands set forth in the first
two articles do not admit of discussion; I leave to negotiations the
*task of resolving the question of the Philippines. If the American
forces have remained until now in their positions, it is in obedience
to a duty with respect to residents and strangers and the progress
of affairs impose upon me.' Seeing the president of the republic resolved not to modify the terms of article III, I made such a pressing
appeal to his generosity that he seemed affected, and in spite of the
opposition of the secretary of state, Mr. Day, ordered the word possession replaced by the word disposition, which does not prejudice
the result of the negotiations and does not have the same general
acceptation.. "
In a telegram of August 1, Spain "set forth some observations"
which, however, were sent only in the way of suggestion, full discretion being left to the French Ambassador.  The despatch said:
"... The third point, which determines the form of disposition
of the Philippine Islands, seems lacking in precision to this government. The government has supplied the deficiencies noticed in it,
supposing that there is no question respecting the permanent sovereignty of Spain in that archipelago, and that the temporary occupation of Manila, its port, and bay by the Federal government is to
continue only for the time necessary for an understanding between
both countries regarding administration reforms; also that it will be
well understood that all discussions regarding such reforms shall be
exclusively between Spain and the United States." (Spanish Diplom.
Corres. and Docs., 214.) The result, given in a telegram from M.




GOVERNMENTAL STEPS


169


The two peace commissions assembled at Paris the
latter part of September, 1898. The American Commission was composed of William R. Day, ex-Secretary of
State resigned to become President of the Commission;
Cambon on August 4, was inflexibility on the part of the President.
M. Cambon said:
"... As far as could be seen Mr. McKinley showed himself
inflexible, and reiterated that the question of the Philippines was the
onmy one which was not definitely resolved in his mind. I improved
this opportunity to ask the president to have the kindness, as far as
possible, to define his intentions regarding the Philippines. On this
point, I said, the answer of the Federal government is drawn in terms
which may aid any claims on the part of the United States, and in
consequence may arouse the fears of Spain regarding her sovereignty.
Mr. McKinley replied to me: 'I do not desire to leave any ambiguity
on this point. The negotiators of the two countries will be the ones
to decide what will be the permanent advantages that we shall demand in the archipelago, and finally the control (controle), disposition, and government of the Philippines.'" On August 7 the Spanish
Minister of State telegraphed through the French Ambassador the
following message to the American Secretary of State: ".
The terms relating to the Philippines seem, to our understanding, to
be quite indefinite. On the one hand, the ground on which the United
States believe themselves entitled to occupy the bay, the harbor, and
the city of Manila, pending the conclusion of a treaty of peace, cannot
be that of conquest, since in spite of the blockade maintained on sea
by the American fleet, in spite of the siege established on land by a
native supported and provided for by the American admiral, Manila
still holds its own, and the Spanish standard still waves over the city.
On the other hand, the whole archipelago of the Philippines is in the
power and under the sovereignty of Spain. Therefore the government of Spain thinks that the temporary occupation of Manila should
constitute a guaranty. It is stated that the treaty of peace shall determine the control, disposition, and government of the Philippines;
but as the intentions of the Federal government by regression remain
veiled, therefore the Spanish government must declare that, while
accepting the third condition, they do not a priori renounce the sovereignty of Spain over the archipelago, leaving it to the negotiators
to agree as to such reforms which the condition of these possessions
and the level of culture of their natives may render desirable. The
government of her majesty accepts the third condition, with the




170


1)PHILIPPINE GOVERNMENT


Senators   Cushman     K. Davis, William      P. Frye, and
George Gray; and Mr. Whitelaw Reed, former Minister
to France.    The Spanish Commissioners were Eugenio
Montero Rios, President of the Senate, President; Senabove mentioned declarations... " Mr. Day sent a note to M.
Cambon, saying: "The Duke's note, doubtless owing to the various
transformations which it has undergone in the course of its circuitous
transmission by telegraph and in cipher, is not, in the form in which
it has reached the hands of the president, entirely explicit. Under
these circumstances it is thought that the most direct and certain way
of avoiding a misunderstanding is to embody in a protocol, to be
signed by us as the representatives respectively of the United States
and Spain, the terms on which the negotiations for peace are to be
undertaken," and enclosed a draft which, besides arranging for the
appointment of commissioners for the evacuation of the Spanish
islands in the West Indies and for the appointment of commissioners
to treat of peace, "embodied the precise terms tendered to Spain" in
the note of July 30. They were as follows: "..  Article 3. The
United States will occupy and hold the city, bay, and harbor of Manila pending the conclusion of a treaty of peace which shall determine
the control, disposition, and government of the Philippines.."
Two days later the protocol was signed and hostilities ordered suspended. The Washington date was Friday, August 12; the hour
4:30 P. M. It was 5:30 A. M., Saturday, August 13, at Manila, and
the American forces had just begun to take position for their move
against the city. There was no loss of time in telegraphing the fact
that hostilities were suspended. Manila, however, was the one point
of operations which could not be quickly reached, and meanwhile the
city was to be in actual occupancy by American troops. The news of
the suspension did not reach there until the afternoon of August 16
(Manila date).
More serious was the attitude taken first in a note of September
11, through the French Ambassador, regarding the Philippines, which
claimed that the occupation of Manila and its harbor and bay should
be considered in the light of the protocol of August 12, and not in
virtue of the capitulation of August 14; that the occupation did not
confer the right to alter Spanish laws in force there but that the civil
administrative, judicial, and political institutions should be maintained until the final treaty of peace should determine the "control,
disposition, and government" of the islands, Spain not having renounced her sovereignty there; that Spain considered the troops of




GOVERNMENTAL STEPS


171


ator Buenaventura Abarzuza; Associate Justice Jose de
Garnica y Diaz; Wenceslaw Ramirez de Villa-Urrutia,
Minister Plenipotentiary to the Belgian Court; and General Rafael Cerero y Saenz.
the Manila garrison as free and proposed to use them in other parts
of the archipelago to suppress rebellion and maintain order. The
paper also included a request that the United States demand of the
Tagal rebels the surrender of Spanish prisoners held by them; and a
declaration that it was Spain's intention to treat any armed vessels
fitted out by the insurgents as pirates. The despatch ended by asking
that the families of the officers be taken from the Marianne islands,
and who were stated to be in deplorable circumstances, be brought to
Cavite or returned to Spain. (Foreign Relations, 1898, 813.) The
American note of September 5 had said: "It can scarcely be expected
that this government would even consider the question of adopting
the first alternative, in view of the fact that for sometime before the
surrender of Manila the Spanish forces in that city were besieged by
the insurgents by land while the port was blockaded by the forces of
the United States by sea. As to the second alternative, it will be a
matter for regret if it should be adopted on the strength of rumors,
some of which have been shown to be groundless, while others yet
are unconfirmed. The government of the United States will, through
its military and naval commanders in the Philippines, exert its influence for the purpose of restraining insurgent hostilities pending the
suspension of hostilities between the United States and Spain. It
would be unfortunate if any act should be done by either government
which might, in certain aspects, be inconsistent with the suspension
of hostilities between the two nations, and which might necessitate
the adoption of corresponding measures of precaution by the other
government." (Foreign Relations, 1898, 811.) The shorter statement of the conditions given in reply to the notes of the American
department of state should be given:
"... The Minister of State at Madrid, to whom the replies
made by your honorable predecessor in his notes of September 5, 6,
and 16 were communicated, has just requested me to lay the following observations before you:.
"2. In opposition to this theory the Spanish government maintains
that according to the terms of article VI of the protocol any act of
hostility committed subsequently to the signing of that instrument is
morally without legal value. If the belligerent forces could not be at
once notified of the agreement made, this was merely due to a ma



172


PHILIPPINE GOVERNMENT


The most difficult question and the one on which the
negotiations turned, concerned the disposition of the
Philippines. It was taken up October 31 and proposals
and counter proposals occupied most of the time of the
Commissioners during the next month. This situation
arose first from the lack of decision upon the part of the
President and the consequent ambiguity of the Commissioners' instructions; it was complicated by the conflicting
advice which came to the American Commission; it was
increased by the doubtful status in international law of
terial impossibility, owing to the cutting by the Federal authorities
of the cable whereby telegraphic communication was maintained between Manila and Asia. Under these circumstances the Spanish government persists in its conviction that the capitulation of August 14
is null and void, and will consider it useless to make any reference
thereto until certain acts of the American authorities at Manila shall
come to its knowledge...  " This was answered by Mr. Hay,
who had now replaced Mr. Day, the head of the American Commission to Paris, as Secretary of State, as follows:
"October 29, 1898.
"Sir: I had the honor duly to receive the note which you addressed to me on the 4th instant, in which, at the request of the minister of State of Spain, you lay before me certain observations of the
Spanish government made in reply to this department's notes to Mr.
Cambon of the 5th, 8th, and 16th ultimo.
"Among these observations are included several subjects which are
now under discussion by the peace commission at Paris, and for that
reason the government of the United States does not think it convenient to discuss them here.
"I deem it proper, however, to say:
"1. That the government of the United States is not able to accept
the interpretation placed by the government of Spain upon the respective effects in law and in fact of the protocol of August 12 and
the capitulation of August 14 upon the military situation at Manila..." F. E. Chadwick, The Relations of the United States and
Spain, Vol. II, pp. 431-449. See further 30 Stats. at L., 1742; Spanish
Diplomatic Correspondence and Documents, pp. 200, 206, 214; Foreign Relations, 1898, pp. 813, 819, et seq.; I Moore, International Law
Digest, pp. 520-527; John Holladay Latane, America as a World
Power, 1897-1907, pp. 65-67.




GOVERNMENTAL STEPS


173


American tenure of Manila under the surrender made
after the signing of the peace protocol; and it was
augmented further by the radical differences of opinion
which appeared among the American commissioners.' To
obtain light on a dark subject, witnesses such as General
Merritt, with statements from others also, and John Foreman, the writer, were called. Felipe Agoncillo, the accredited agent of the Revolutionary government of the
Philippines, was refused    recognition,5 notwithstanding
his intimation that his people would accept no settlement
to wfich they were not a party.
4 McKinley, Island Possessions of the United States, p. 56.
b "My old acquaintance Felipe Agoncillo was sent to Washington
in September by Emilio Aguinaldo to solicit permission from the
American Government to represent the rebel's cause on the Paris
Commission, or, failing this, to be allowed to state their case. The
government, however, refused to recognize him officially, so he proceeded to Paris. Having unsuccessfully endeavored to be heard
before the Commission, he drew up a protest in duplicate, handing a
copy to the Spanish and another to the American Commissioners.
The purport of this document was that whereas the Americans had
supplied the Filipinos with war-material and arms to gain their independence and not to fight against Spain in the interests of America, and whereas America now insisted on claiming possession of the
Archipelago, he protested, in the name of Emilio Aguinaldo, against
what he considered a defraudment of his just rights. His mission
led to nothing, so he returned to Washington to watch events for
Aguinaldo. After the treaty was signed in Paris he was received at
the White House, where an opportunity was afforded him of stating
the Filipinos' views; but he did not take full advantage of it, and returned to Paris, where I met him in July, 1900, holding the position
of 'High Commissioner for the Philippine Republic.' His policy was,
then, 'absolute independence, free of all foreign control."'" John
Foreman, The Philippine Islands, 3rd Ed. (1906), pp. 472, 473;
Hubert Howe Bancroft, The New Pacific, p. 76. "The moral right
of the Filipinos to have a voice in the making of any programme
affecting their future must at once be conceded by every American
(except such as think government by the 'consent of the governed'
is only for white men.)" Le Roy, The Americans in the Philippines,
Vol. I, pp. 378, 379.




174


PHILIPPINE GOVERNMENT


The instructions of the President to the Commission
insofar as they concerned the Philippines, first presented
certain guiding principles. These emphasized that "We
took up arms only in obedience to the dictates of humanity
and in the fulfillment of high public and moral obligations. We had no design of aggrandizement and no ambition of conquest." This was altruism. Again "Avowing unreservedly the purpose which has animated all our
effort, and still solicitous to adhere to it, we cannot be
unmindful that without any desire or design on our part,
the war has brought us new duties and responsibilities
which we must meet and discharge as becomes a great
nation on whose growth and career from the beginning
the Ruler of Nations has plainly written the high command and pledge of civilization." This was patriotism.
But again "Incidental to our tenure in the Philippines is
the commercial opportunity to which American statesmanship can not be indifferent. It is just to use every
legitimate means for the enlargement of American trade;
but we seek no advantages in the Orient which are not
common to all." This was commercialism. Thereupon
the President concluded:
"In view of what has been stated, the United States
cannot accept less than the cession in full right and
sovereignty of the Island of Lulzol. It is desirable, however, that the United States shall acquire the right of entry for vessels and merchandise belonging to citizens of
the United States into such ports of the Philippines as
are not ceded to the United States upon terms of equal
favor with Spanish ships and merchandise, both in relation to port and customs charges and rates of trade and
commerce, together with other rights of protection and
trade accorded to citizens of one country within the territory of another. You are therefore instructed to demand
such concession, agreeing on your part that Spain shall
have similar rights as to her subjects and vessels in the




GOVERNMENTAL STEPS


175


ports of any territory in the Philippines ceded to the
United States." 6
Differences of opinion soon developed among the
American Commissioners.     Messrs. Davis, Frye, and
Reed favored demanding the whole Philippine Archipelago. Mr. Gray could not "agree that it is wise to take
the Philippines in whole or in part."  Mr. Day advocated
a middle course, retention of Luzon and certain other
islands. In response to these requests for further instructions, the Secretary of State replied on October 26 that"The information which has come to the President
since your departure convinces him that the acceptance of
the cession of Luzon alone, leaving the rest of the islands
subject to Spanish rule, or to be the subject of future
contention, cannot be justified on political, commzercial, or
httmanitarian grounds. 7'le CCssion must be of the Tchole
Archipclago or Il(,te. The latter is wholly inadmissible,
and the former must therefore be required. The President reaches this conclusion after most thorough consideration of the whole subject, and is deeply sensible of the
grave responsibilities it will impose, believing that this
course will entail less trouble than any other, and besides
will best subserve the interests of the people involved, for
whose welfare we cannot escape responsibility." 7
Following presentation of this demand, there ensued
an elaborate discussion.8 Spain tenaciously maintained
that the peace protocol only contemplated a temporary
occupation of Manila and did not impair Spanish sovereignty. To this the United States replied that the protocol left to the determination of the treaty of peace the
entire subject of the future government and sovereignty
6 I Moore, International Law Digest, pp. 527, 528.
7I Moore, International Law Digest, p. 528; Foreign Relations,
1898, p. 935.
8 See Senate Document 62, 55 Cong. 3 Sess., pp. 110-196.




176


PHILIPPINE GOVERNMENT


of the Philippines. A basis of agreement was finally suggested, taking definite shape in the instruction of Noveinber 13 to the American Commission "to insist upon the
cession of the whole of the Philippines, and, if necessary,
pay to Spain ten to twenty millions of dollars..
The President can not believe any division of the Archipelago can bring us anything but embarrassment in the
future." 9 On November 21, 1898, the American Commissioners presented an ultimatum, in which they demanded the cession of the entire Philippine Archipelago,
while on the other hand they offered to pay Spain
$20,000,000, to admit Spanish ships and merchandise
into the ports of the islands for a stated period on the
same terms as American ships and merchandise, and to
insert in the treaty of peace a mutual relinquishment of
claims.1~ One week later the Spanish Commission accepted the terms offered, ending with these words: "The
Government of Her Majesty, moved by lofty reasons of
patriotism and humanity, will not assume the responsibility of again bringing upon Spain all the horrors of war.
In order to avoid them, it resigns itself to the painful
strait of submitting to the law of the victor, however
harsh it may be, and as Spain lacks material means to defend the rights she believes are hers, having recorded
them, she accepts the only terms the United States offers
her for the concluding of the treaty of peace." " After
five more sessions devoted to perfecting the details of the
treaty, it was finally signed by the plenipotentiaries on
DecemberJ 0, 1898.
The President transmitted the treaty to the Senate on
Mr. Hay, Sec. of State, to Mr. Day, President of the United
States Peace Commission, tel., Nov. 13, 1898, S. Doc. 148, 56 Cong.,
2 Sess. 48, I Moore, p. 529.
l0 S. Doc. 62, 55 Cong., 3d Sess., Part 2, p. 210.
11 Le Roy, The Americans in the Philippines, Vol. I, p. 373; S. Doc.
No. 62, 55th Cong., 3d Sess., Part 2, p. 213.




GOVERNMENTAL STEPS


177


January 4, 1899, together with the protocols and accompanying papers.'s The ensuing debate attracted the close
attention of the entire country. From the side of the
opposition it proceeded on three lines-lack of constitutional power to acquire and hold the Philippines, the
violation of the principles of the Declaration of Independence involved in doing so, and sympathy and admiration
for the Filipinos.' A number of amendments proposed
by Senator Vest requiring Spain merely to "relinquish,"
not to "cede," her sovereignty over the Philippines, and
making a part of the treaty itself the declaration that the
United States assumes control "for the time being" and
"as far as such control may be needful" for the purpose
of enabling the people of the Archipelago to establish a
government "suitable to their condition," and of assuring the rights of life and property and the maintenance
of order. were voted down.4 On February 6. 1899, the
United States Senate ratified the treaty by a vote of fiftyseven to twenty-seven; a change of two votes would have
12 Senate Docs. 62, 55 Cong., 3d Sess., pts. i-iii.
13 Lodge (then a member of the Senate), The War with Spain,
p. 231.
14 Such proposals were cleverly answered by Senator Lodge in the
following words:
"We must either ratify the treaty or reject it, for I cannot suppose
that anyone would seriously advance the proposition that we should
amend the treaty in such a way as to make pledges to Spain, and to
Spain alone, for our good conduct in a matter which will be wholly
our own to decide.... I believe we can be trusted as a people
to deal honestly and justly with the Islands and their inhabitants
thus given to our care. I believe that we shall have the courage not
to depart from those Islands fearfully, timidly, and unworthily and
leave them to anarchy among themselves, to the brief and bloody
domination of some self-constituted dictator, and to the quick conquest of other powers, who will have no hesitation as we should feel
in crushing them into subjection by harsh and repressive methods.
It is for us to decide the destiny of the Philippines, not for Europe,
and we can do it alone and without assistance."
P. I. Govt.-12.


I9




178


PHILIPPINE GOVERNMENT


defeated the treaty.15 Two factors which had a great deal
to do with the approval of the treaty were the support of
Mr. Bryan and the beginning of the Philippine Revolution. Congress appropriated the money 16 to carry out its
obligations on March 2.
The same narrow margin secured ratification by the
Spanish Cortes on March 19. An amendment aimed at
preservation of Spanish sovereignty in the Philippines
was only defeated by a vote of 120 to 118.17
The ratifications were exchanged by tle two countries
on the 11th of April, 1899. The same day the treaty was
publicly proclaimed by the President of the United States.
A supplemental treaty to correct the boundaries of the
Philippines as defined in Article III of the Treaty of
Paris so as to include the Islands of Sibutu and Cagayan
Sulu was signed on November 7, 1900, and ratifications
exchanged on March 23, 1901. The United States paid
Spain $100,000 for her claims to these islands.'8
The Treaty of Paris 9 is male up of seventeen articles.
Article III. stipulated that "Spain cedes to the United
States the Archipelago known as the Philippine Islands."
The following paragraph of the same article then reads:
"The United States will pay to Spain the sum of twenty
million dollars, within three months after the exchange
of the ratifications of the present treaty." VWhile this
money payment must necessarily have had some connec16 For summary of votes, see Senate Document 182, 57th Cong., 1st
Sess.
6 30 Stats. at L. 993.
17 Le Roy, The Americans in the Philippines, Vol. II, p. 12.
is See 31 Stats. at L., 1942; I Moore, International Law Digest,
pp. 530, 531, note b. "These worthless islands are of no importance
whatever except that through an oversight they cost the United
States government one hundred thousand gold dollars." A. Henry
Savage Landor, The Gems of the East, p. 233.
19 30 Stats. at L., 1754.




GOVERNMENTAL STEPS                     179
tion with the Philippine question, its exact purpose cannot be ascertained from the language of the treaty.
Whetler the twenty million dollars was intended as a purchase price for the Philippines 80 or was a reimbursement
to Spain for the surrender of what was assumed to be an
equivalent value in public property owned by that power
in the Philippines, together with the improvements of a
pacific character,21 is really not important; the fundamental object was to arrive at such a compromise as would
avoid a renewal of the war, and yet not permit Spain to
retain the Philippines. Then follows Article IV. granting equal rights to Spanish merchandise and ships for a
period of ten years. Articles V. and VI. gave the terms
of evacuation and provided for the release of prisoners
of war.   Article VIII. stipulated for the relinquishment
of all property and records belonging to the Crown of
Spain; it further recognized the legal personality of the
20Even the highest judicial tribunal is hazy in its views for it
states that "The Philippines, like Porto Rico, became, by virtue of
the treaty, ceded conquered treaty, or territory ceded by way of indemnity." The Diamond Rings, 183 U. S. 176 (1901), 46 L. Ed. 138.
But in Vilas v. Manila (1911) 220 U. S. 345, 55 L. Ed. 491 appears
this language-"in connection with the clause agreeing to pay Spain
twenty million dollars for the cession of the Philippine group." Many
authors, as Woodrow Wilson, Division and Reunion, p. 337, take for
granted that the Islands were purchased. Whitelaw Reid, a member
of the Peace Commission, in speeches before the Lotus and Marquette Clubs, February 11 and 13, 1899, implies that the Philippines
were taken by way of indemnity. Whitelaw Reid, Problems of Expansion, pp. 29, 30, 37.
21 Elbert J. Benton, International Law and Diplomacy of the Spanish-American War, p. 251; The Treaty of Peace and Accompanying
Papers, p. 109. "The facts of the case disclose that this sum was
agreed upon rather to arrive at an amicable agreement, because if the
United States had so wished, the cession of the Philippines unconditionally, like that of Porto Rico, could have been demanded, for after
all the Americans were the victors." Jose Gil, The Treaty of Paris,
unpublished thesis.




180


PHILIPPINE GOVERNMENT


Roman Catholic Church and solemnly safeguarded its
property rights.    Article IX. guarantees Spaniards in
their property rights and allowed them to retain their
status as citizens of Spain by registering as such within
one year from the taking effect of the treaty. The period
of registration of Spanish citizens in the Philippines was
subsequently extended, by mutual convention, for six
months from April 11, 1900.22 The last paragraph of
this article provides:    "The civil rights and political
status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the
Congress." Article X. secures religious freedom. Article XI. gives the rights of Spaniards before the courts.
Article XII. enumerates the rules to be followed relative
to pending judicial proceedings. Article XIII. protected
Spanish copyrights and patents 23 and admitted certain
22 31 Stats. at L., 1881; Foreign Relations, United States, 1899, pp.
714-20, and id., 1900, pp. 889, 890.
s2 By virtue of the foregoing provisions of said treaty, Circular No.
12, Division of Customs and Insular Affairs, dated Washington,
D. C., April 11, 1899, was issued by the Assistant Secretary of War
and is as follows:
"In territory subject to military government by the military forces
of the United States, owners of patents, including design patents,
which have been issued or which may hereafter be issued, and owners of trade-marks, prints, and labels, duly registered in the United
States Patent Office, under the laws of the United States relating to
the grant of patents and the registration of trade-marks, prints, and
labels, shall receive the protection accorded them in the United States
under said laws; and an infringement of the rights secured by lawful
issue of a patent or by registration of a trade-mark, print, or label
shall subject the person or party guilty of such infringement to the
liability created and imposed by the laws of the United States relating
to said matters: Provided, That a duly certified copy of the patents
or of the certificate of registration of the trade-mark, print, or label
shall be respected in said territory the same as if such laws were in
full force and effect.
(Signed) "G. D. MEIKLEJOHN,
"Assistant Secretary of War."




GOVERNMENTAL STEPS


181


Spanish works free of duty for a period of ten years from
the date of exchange of ratifications of the treaty."
Many of these provisions, it will be noted, were superfluous, being mere restatements of well recognized principles of the public law. The other articles not mentioned
had little effect on the Philippines.
~ 67. Reasons      for  retention. —The       war    with
Spain had been entered upon with the sole aim of putting
an end to the intolerable conditions that existed in Cuba.
At the time of the outbreak of the war and in fact for a
considerable period thereafter, the Philippines were to
the United States a terra incognita-not even a "geographical expression." 26a  Tlis fact is plainly borne out,
in that in a long official letter transmitting the files of
the Asiatic Squadron to its new commander-in-chief, then
Commodore Dewey, the only reference to the Philippines
was a short parraraph to the effect that "for some time
the newspapers have contained accounts of a rebellion in
progress in the Philippines;" but that "no official information has been received in relation thereto, and no
Circular No. 21, Division of Customs and Insular Affairs, dated
Washington, D. C., June 1, 1899, as amended by Circular No. 34 of
the same Department, dated September 25, 1899, required the holder
of patents in the insular possessions of the United States to file with
the proper authorities a certified copy of a patent or a certificate of
registration, etc. See Gsell v. Yap-Jue (1906), 6 Phil. 143, 146.
24 Section 13 of the treaty with Spain of 1898, protecting industrial
property in the ceded territory, will not be construed as contravening
principles of morality and fairness and as protecting a trade-mark
fraudulently registered prior to the treaty. Ubeda v. Zialcita (1912),
226 U. S. 452, 57 L. Ed. 296.
25 See generally Coolidge, The United States as a World Power,
particularly pp. 148, 151, 199, 346; Maximo Kalaw, The Case for the
Filipinos, Ch. II.
25a Senator Williams of Mississippi tells how as a member of the
House Committee on Foreign Relations during the Spanish-American War it was one of his arduous tasks to climb upon a stool and
point out the Islands on the map for the benefit of his colleagues.




182


PHILIPPINE GOVERNMENT


information of any sort that shows American interests
to be affected." 26   When    Commodore Dewey sought
information on the subject in Washington, he found that
the latest official report relative to the Philippines on file
in the office of naval intelligence bore the date of 1876.
Deep designs on the Philippines by the United States on
account of the declaration of war against Spain can,
therefore, not rightly be imputed to the American people. "At the beginning of the war there was perhaps not
a soul in the whole Republic who so much as thought of
the possibility of his nation becoming a sovereign power
in the Orient." 27 The United States found herself established as a world power with station in the far East
merely as an accident of the war. But with Spain brought
to her knees, and with American military forces triumplantly occupying Manila and Manila Bay, and engaging the Filipino insurgents even before peace was
ratified, the United States was in a position to decide the
Philippine question for herself, for Spain, for the Philippine Revolutionary Government, and for the world.
26 Autobiography of George Dewey, Admiral of the Navy, p. 175.
27 Reinsch, World Politics, p. 64. Yet it is interesting to note that
about thirty years previous the German writer Jagor had prophesied:
"In proportion as the navigation of the west coast of America extends the influence of the American element over the South Sea, the
captivating, magic power which the great republic exercises over the
Spanish colonies will not fail to make itself felt also in the Philippines. The Americans are evidently destined to bring to a full development the germs originated by the Spaniards. As conquerors
of modern times, they pursue their road to victory with the assistance of the pioneer's axe and plough, representing an age of peace
and commercial prosperity in contrast to that bygone and chivalrous
age whose champions were upheld by the cross and protected by the
sword." Travels in the Philippines, Eng. Ed., p. 369. The preamble
to the Philippine Autonomy Act (Act of Congress of August 29,
1916) begins: "Whereas it was never the intention of the people of
the United States in the incipiency of the War with Spain to make it
a war of conquest or for territorial aggrandizement."




GOVERNMENTAL STEPS


183


Several courses of action were open. The Philippines
could be returned to Spain. But this would have been a
betrayal of the Filipino people, and a shirking of a duty
similar to that which had sent American troops into Cuba.
"The government of Spain's colonies had everywhere
failed and gone to hopeless decay.     It would have been
impossible, it would have been intolerable, to set it up
again where it had collapsed." ' The Philippines could
be turned over to the Philippine Revolutionary government. But having practically forced Spain out of the
islands, it was not thought that the United States could
safely withdraw while the people had not capacity sufficient for establishing a real republic, capable of preventing anarchy, internal dissension or sanguinary dictatorship, or quick seizure by a foreign power.'     The Philippines could be sold or presented as a gift to another
28 Woodrow Wilson, A History of the American People, Vol. V,
pp. 295, 296.
29 "There is nothing to show, by a review of accomplished facts,
that, without foreign intervention, the Filipinos would have prospered
in their rebellion against Spain. Even if they had expelled the
Spaniards their independence would have been of short duration, for
they would have lost it again in the struggle with some colony-grabhbing nation." Foreman, The Philippine Islands (3rd Ed., 1906), p. 8.
"After the battle of Manila Bay, while other countries, as is usual
under such conditions, sent a few ships of war to look after the interests of their citizens, Germany, without any obvious reason, hastily
despatched to the scene of action her Pacific squadron-a force equal
in strength to the fleet of Admiral Dewey. The Americans believed
that this force came in no friendly spirit, but in the hope of taking
advantage of the confusion to pick up something for Germany; and
their distrust was intensified by the reports they heard of its behavior.
Fear that the Germans might establish themselves in the Philippines
was one of the motives that induced the United States to take over
the islands. When, later, they purchased from Spain the Carolines
and the Ladrones, this was taken as proof that the suspicion had been
well founded." Coolidge, The United States as a World Power, p.
199.




184


PHILIPPINE GOVERNMENT


power. But such a proceeding would have been incompatible with national honor, would have raised up jealousies on the part of other countries, and would have been
bitterly opposed by the Filipinos.8~ The last obvious
80 (From Senate Document 62, p. 360.)
Cavite, June 10, 1898.
"To the President of the Republic of the Great American Nation.  At the same time, as I am always frank and open, I must
express to you the great sorrow which all of us Filipinos felt on reading in the Times, a newspaper of the greatest circulation and reputation in the whole world, in its issue of the fifth of last month, the
astounding statement that you, sir, will retain these Islands until the
end of the war, and, if Spain fails to pay the indemnity, will sell thenl
to a European power, preferably to Great Britain. But we found a
palliative to our sorrows in the improbability and suddenness of that
statement, as common sense refuses to believe that so sensible a public man as you would venture to make an assertion so contrary to
common sense, before events are entirely consummated, as you well
know that if God favors the triumph of your arms to-day, to-morrow
he may defeat them and give victory to Spain, and because such an
assertion is not consistent with the protection of which you make a
boast toward this unfortunate people which has been groaning for
more than three centuries in the clutches of a nation which has for
its shield (emblem) the lion, one of the ferocious animals, although
she displays it as an emblem of nobility, which she certainly does not
possess, besides the fact that it is opposed to your noble and generous
sentiments to wish to sell these islands to a European power such as
England, thereby making us pass under the domination of that nation, which although it has a truly liberal government, partakes none
the less of the nature of a tyranny that is monarchical.
"I close by protesting once and a thousand times, in the name of
this people, which knows how to fight for its honor by means of its
improvised warriors and artillerymen, against the statement published
in the Times, mainly for the purpose of casting a blot in history upon
its glorious name, a people which trusts blindly in you not to abandon
it to the tyranny of Spain, but to leave it free.and independent, even
if you make peace with Spain, and I offer fervent prayers for the
ever increasing prosperity of your powerful nation, to which and to
you I shall show unbounded gratitude, and shall repay with interest
that great obligation.
"Your humble servant,
"EMILIO AGUINALDO."




GOVERNMENTAL STEPS


185


course was for the United States to take the Philippines.81
Responsibility for the acquisition of the Philippines
must of course rest with President McKinley.' His
This note is appended to Whitelaw Reid's (a member of the Peace
Commission) Problems of Expansion, p. 36-"At this time (February 13, 1899) it was still a secret that among the many intrigues
afoot during the negotiations at Paris was one for the transfer of the
Philippines to Belgium. But for the perfectly correct attitude of King
Leopold, it might have had a chance to succeed, or at least to make
trouble."
81The thought of the time is well illustrated by Senator Lodge
writing in 1899:
"The forces which had been let loose by the Spanish war were
world forces, and they represented their arguments with the grim
silence and the unforgiving certainty of fate. Will you go away and
leave the Filipinos to Spain, they asked, leave them to a tyranny and
oppression tenfold worse than that in Cuba which carried you into
the war? Clearly impossible. Will you force Spain out of the
Islands, and then, having destroyed the only government and the
only sovereignty which have ever existed there, will you depart yourselves and leave the Islands to anarchy and bloodshed, to sanguinary
dictatorship, and to the quick seizure of European powers and a possible world-wide war over the spoils? Again clearly impossible.
Again no thoroughfare. Again a proposition which no strong, highspirited people could entertain. Will you, then, call in the other powers of the earth to help you settle the question of these Islands, determine their destiny, and establish a government for their people?
Once more, no. Such a solution is incompatible with decent pride
and honest self-respect, and could lead only to mischief and confusion, to wars and rumors of wars. What then will you do? Is
there aught you can do but replace the sovereignty you have dashed
down, and with your own sovereignty meet the responsibilities which
have come to you in the evolution of the time, and take yourselves
the Islands you have won? Quite clearly now the answer comes
that no other course is possible." Lodge, The War with Spain, pp.
228, 229. See also Coolidge, The United States as a World Power,
p. 151. "A diplomat who was very near to President McKinley in
1898 said that the Philippines were annexed because nobody could
suggest any other feasible way of dealing with them." Hart, The
Obvious Orient, p. 281.
2 "The question has often been asked, who was responsible for




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PHILIPPINE GOVERNMENT


view point, his course of reasoning is then most important. In telegraphic instructions to the American Peace
Commission on October 28, 1898, Secretary of State Hay
said:
"It is imperative upon us that as victors we should be
governed only by motives which will exalt our nation.
Territorial expansion should be our last concern; that we
shall not shrink the moral obligations of our victory is
of the greatest. It is undisputed that Spain's authority is
permanently destroyed in every part of the Philippines.
To leave any part in her feeble control now would increase our difficulties and be opposed to the interests of
humanity. The sentiment in the United States is almost
universal that the people of the Philippines, whatever else
is done, must be liberated from Spanish domination. In
this sentiment the President fully concurs. Nor can we
permit Spain to transfer any of the islands to another
power. Nor can we invite another power or powers to
join the United States in sovereignty over them. We
must either hold them or turn them back to Spain.
"Consequently, grave as are the responsibilities and unforeseen as are the difficulties which are before us, the
President can see but one plain path of duty-tle acceptance of the Archipelago. Greater difficulties and more
serious complications, administrative and international,
would follow any other course. The President has given
to the views of the Commissioners the fullest consideration, and in reaching the conclusion above announced, in
the light of information communicated to the Commission and to the President since your departure, he has
the treaty of 1899, particularly for the acquisition of the Philippine
Islands? Attempts have been made to fix the responsibility on Admiral Dewey, on the Peace Commissioners, on the Senate, and on the
American people; but the responsibility must, of course, rest on President McKinley." Latane, America as a World Power, 1897-1907,
p. 78.




GOVERNMENTAL STEPS


187


been influenced by the single consideration of duty and
humanity." S
That the President was a faithful transmitter of a large
part of American public opinion and was without doubt
influenced by it, is seen in his final instructions to the
83Foreign Relations, 1898, p. 937. "The position of Mr. McKinley
in regard to the Philippines may be gathered from a statement which
he made to a party of clergymen, a committee from a religious gathering in Washington, who called upon him on November 21, 1899.
After their interview, as they arose to go, the President detained
them for a moment to say, as reported in The Christian Advocate:
"'Before you go I should like to say just a word about the
Philippine business. I have been criticized a good deal about the
Philippines, but I don't deserve it. The truth is, I didn't want the
Philippines, and when they came to us, as a gift from the gods, I
did not know what to do with them. When the Spanish war broke
out, Dewey was at Hongkong, and I ordered him to go to Manila,
and he had to; because, if defeated, he had no place to refit on that
side of the globe, and if the Dons were victorious they would likely
cross the Pacific and ravage our Oregon and California coasts.
And so he had to destroy the Spanish fleet, and did it  But that
was as far as I thought then.  When next I realized that the,
Philippines had dropped into our lap, I confess that I did not
know what to do with them. I sought counsel from all sidesDemocrats as well as Republicans-but got little help. I thought
first we would take only Manila; then Luzon; then other islands,
perhaps, also. I walked the floor of the White House night after
night until midnight; and I am not ashamed to tell you, gentlemen,
that I went down on my knees and prayed Almighty God for'
light and guidance more than one night.
"'And one night late it came to me this way-I don't know
how it was, but it came: (1) That we could not give them back
to Spain-that would be cowardly and dishonorable; (2) that we
could not turn them to France or Germany-that would be bad
business and discreditable; (3) that we could not leave them to
themselves-they were unfit for self-government-and they would
soon have anarchy and misrule over there worse than Spain's was;
and (4) that there was nothing left for us to do but to take them
all, and to educate the Filipinos, and uplift and civilize and
Christianize them, and, by God's grace, do the very best we could
by them, as our fellowmen for whom Christ also died. And then




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PHILIPPINE GOVERNMENT


Peace Commission.84 Varying and conflicting motives
impelled to his decision. In the first place, natural human
exaltation over a great victory was inevitable. Ardent belief in the fulfillment of America's manifest destiny and
disinclination to haul down the Flag where it had once
been planted became the result.8   Patriotism! An altrustic
and sincere desire to improve the condition of the Filipinos and to prepare them for self-government was apparent. A course which would best subserve the interests of the Filipino people, which would guard their welfare, and which would lead to their political emancipation, again became the result.86 Humanitarianism! A
belief that Providence had opened a way for the spread of
civilization and for Christian conversion influenced many.
A vision of missionary conquest again became the reI went to bed, and went to sleep, and slept soundly, and the next
morning I sent for the chief engineer of the War Department
(our map maker), and told him to put the Philippines on the
map of the United States' (pointing to a large map on the wall
of his office); 'and there they are, and there they will stay while
I am President!'" Devins, an observer in the Philippines, pp.
69-71; Stuntz, The Philippines and the Far East, pp. 143, 144.
84 See sec. 66, supra.
5 The movement for the retention of the Philippines was "the
natural impulse of a people full of exultation and pride over the
completeness, without precedent in naval wars, of the victory that
Dewey had achieved with a skill and intrepidity that conferred
splendor upon American arms. It was the spontaneous outburst
of simplest patriotism to ask that that flag, so valiantly planted,
might float forever in memory of the heroes who raised it." Henry
Watterson, History of the Spanish-American War, p. 277.
86 "President McKinley's motive in compelling Spain to cede to
the United States her sovereignty over the Philippine Islands was
the humanitarian object of liberating the Filipinos from misgovernment and oppression.... The political emancipation of the
Filipinos was the controlling object with the President and people
of the United States. I am, of course, aware that other and less
worthy aims appealed to individual Americans and to groups of
Americans. It would be strange if it were otherwise, considering




GOVERNMENTAL STEPS


189


sult.87 Religion! A quick comprehension of the possibilities of trade expansion and a desire for new markets,
all for the profit of the United States affected the business interests. The retention of the Philippines in order
to use them as a base for the Eastern trade, especially of
China, again became the result.88 Commercialisml Thus
how diversified human motives are apt to be. The jingo saw in the
annexation of the Philippines another avenue for spread-eagleism;
to Americans in the Orient it meant an accession of American
influence in Asia; to the Protestant churchman it offered a new
field for missionary enterprise; the exploiting capitalist was fascinated by the riches of the Philippine forests, lands, and mines,
which showed like 'the wealth of Ormus of Ind'; and the sensational press, still delirious from the fever of war and surfeited
with the staleness of piping peace, discerned in the Philippines
material for new sensations which promised to be as stirring as
the excitant was remote, unknown, and dangerously explosive.
All these influences, and others, were undoubtedly at work. Yet
it was not these forces singly or in combination that carried the
day; it was the humanitarian object of liberating the Filipinos
from Spanish tyranny and bestowing upon them the boon of
freedom that decided the President and people of the United
States to compel Spain to cede to us her sovereignty over the
Philippine Islands." Philippine Affairs, A Retrospect and Outlook,
An Address by Jacob Gould Schurman, President of the First
Philippine Commission, before the members of Cornell University,
pp. 3, 83.
87 "Many clergymen and editors of religious papers agreed with
the idea expressed by President McKinley that Providence had
opened a way for the spread of American civilization in the
East." Latane, America as a World Power, 1897-1907, p. 72.
38 "A quick instinct apprised American statesmen that they had
come to a turning point in the progress of the nation, which would
have disclosed itself in some other way if not in this, had the war
for Cuba not made it plain. It had turned from developing its
own resources to make conquest of the markets of the world. The
great East was the market all the world coveted now, the market
for which statesmen as well as merchants must plan and play their
game of competition, the market to which diplomacy, and if need
be power, must make an open way. The United States could not
easily have dispensed with that foothold in the East which the




190


PHILIPPINE GOVERNMENT


not Patriotism, nor Humanitarianism, nor Religion, nor
Commercialism, singly led to the Philippine acquisition,
but all in combination made up American public opinion
and, together with the line of reasoning which arrived at
the conclusion that the Philippines could not be returned
to Spain, could not be handed over to the Revolutionary
government, and could not be ceded to a foreign power,
led to the same goal-the Philippines must be acquired
and retained.   All this be it understood was American
public opinion analyzed from an American view point as
translated into American action.
~ 68. Title to the Philippines.-By the law         of nations, the title of the United States to the Philippines
could rest either on conquest or cession.    The President
of the United States intimated that the first could be
claimed when in supplemental instructions to the American Commissioners on October 28, 1898, through the
Secretary of State, it was said that "While the Philippossession of the Philippines so unexpectedly afforded them. The
dream of their own poet had been fulfilled,
'See, vast trackless spaces,
As in a dream they change, they swiftly fill,
Countless masses debouch upon them,
They are now covered with people, arts, institutions.'
The spaces of their own continent were occupied and reduced
to the uses of civilization; they had no frontiers wherewith 'to
satisfy the feet of the young men': these new frontiers in the
Indies and in the far Pacific came to them as if out of the very
necessity of the new career set before them. It was significant how
uncritically the people accepted the unlooked for consequences of the
war, with what naive enthusiasm they hailed the conquests of
their fleets and armies. It was the experience of the Mexican war
repeated." Woodrow Wilson, A History of the American People,
Vol. 5, p. 296.
Fairly representative of the business view was an article by
Frank A. Vanderlip, then Assistant Secretary of the Treasury, entitled "Facts about the Philippines," LVI Century Magazine, August,
1898, p. 555.




GOVERNMENTAL STEPS


191


pines can be justly claimed by conquest, which position
lust not be yielded, yet their disposition, control, and
government the President prefers should be the subject
of negotiation." 9 That claim to dominion under conquest was hardly tenable 0 appears from    a telegram   of
the Presi(lent of the American Commission of November
3, 1898-"After a careful examination of the authorities
thie majority of the Commlission are clearly of the opinion
that our demand for the Philippine Islanlds cannot be
based on conquest. When the protocol was signed Manila
was not captured, siege was in progress, and capture made
after the execution of the protocol. Captures made after
agreement for armistice must be disregarded and status
quo restored as far as practicable.  We can require cession of the Philppine Islands only as an indemnity for
losses and expenses of the war."
On the other hand, a valid title by cession has been impeached on the grounds that this could not be acquired
without the express consent of the inhabitants of the
Philippines, and that since Spanish sovereignty had in
reality ceased to exist Spain had nothing to cede. The
Filipino delegate at Paris and Washington, Felipe Agoncillo, sets forth these contentions as follows: "There has
been no moment of time when the United States could
89 Foreign Relations, 1898, p. 937.
40 "At the time the delegates to the Peace Conference scarcely
comprehended that a rebellion was included with the purchase.
We were far from being in possession of the property which we had
bought. Manila was only the capital city of the most important
of a group of many islands, with many capitals, in all of which
we must establish authority." Autobiography of George Dewey,
Admiral of the Navy. p. 284. But the Judge Advocate General in
an opinion of September 30, 1909, states that "The Philippine
Islands were acquired by the United States during the war of
1898 with Spain, the title by conquest having been perfected by the
treaty of December 10, 1898, between the United States and Spain,
(30 Stat. at L., 1754.)"




192


PHILIPPINE GOVERNMENT


have acquired any title to the Philippine Islands, save by
the express consent of their inhabitants, and that, such
consent not having been given, and Spain having, as it
must be confessed, no practical jurisdiction or control
over the Philippine Islands since June 18, 1898, she is
without power to pass title to any other nation..
May I further call your attention to the fact that although a treaty of peace has been signed between the
United States and the Kingdom of Spain, by the terms of
which Spain ceded her sovereignty over the Philippine
Islands to the United States, in fact Spain had no sovereignty whatever to cede. As before recited, at the time
of such signature, an independent government, performing all its functions as a government, and entitled to
recognition as such by the strictest rules laid down by
all the American Secretaries of State, was in possession
of all of the islands, except the port of Manila, controlled
by the Americans, and the port of Iloilo, where the Spanish were besieged; the possession of Manila by the Americans having been obtained by them through the joint
action of the American and Philippine armies, the Filipinos having prevented exit from the city on several sides
while the Americans attacked on one side." 41 Against
the first objection is this-"The principle that the wishes
of a population are to be consulted when the territory
41 Memorandum of Felipe Agoncillo, Relative to the Right of
the Philippine Republic to Recognition Accompanying Letter to
the Honorable the Secretary of State, of date January 11, 1899,
pp. 12, 15. Also to same effect, Agoncillo's Memorial to the U. S.
Senate of January 30, 1899, quoted in Kalaw, The Case for the
Filipinos, pp. 64-78. Mabini in a Manifesto on behalf of the Revolutionary Government, of April 15, 1899, said: "You clearly see
that the North American government undertakes to extend its
sovereignty over the Philippine Islands, basing its claim upon a
title null and void. This title is the treaty of Paris, agreed to
by the Spanish-American Commission the 10th of last December,
and ratified, according to the commission that signs this address,




GOVERNMENTAL STEPS


193


which they inhabit is ceded has not been adopted into
international law, and can not be adopted into it until
title by conquest has disappeared." "    This is a rule always followed by the United States and recognized the
world over. Yet while the desires of the inhabitants,
somewhat in the status of tenants, were legally unimportant and while Spain could renounce her rights over the
islands in favor of the United States, even the highest
law of the land could not make the people, American subjects against their will."   Discussing the second objecby the American government some weeks ago, and by that of Spain
on the 20th of last March. This contract to cede the islands was
concerted and concluded when the Spanish domination had already
ceased in the Philippines, thanks to the triumph of our arms.
Moreover, in this act of cession no voice whatever was allowed
the representatives of the Philippine people to which belongs the
sovereignty of the islands by natural right and international laws."
Quoted in Harper's History of the War in the Philippines, p
158; and in Speech of Hon. George F. Hoar in the Senate, April
17, 1900, p. 65.
421-lall, International Law, 4th Ed., p. 49; Mr. Sherman, Sec. of
State to the Japanese Minister, Aug. 14, 1897, I Moore, Int. Law
Dig., p. 274; Butler, Treaty Making Power of the United States,
Vol. I, secs. 46-49.
43 "It is true that by the treaty of peace Spain ceded to the
United States the Philippine Islands and that the United States
agreed to pay to Spain $20,000,000. But it is important to consider
the legal effect of such a treaty. What is it that Spain has sold
and the United States purchased? Has Spain sold the Filipinos
and have we bought them as so many cattle or as so many slaves?
I deny that that is the legal effect of the treaty. Spain has simply
renounced its rights over those Islands and this it has done in
our favor. But it has not and it could not make those people our
subjects against their will. The law does not compel these people
to accept the United States as sovereign over them. The subjects
of a state are not at that state's disposal like a farm or a herd of
cattle. If during the revolution Great Britain had ceded her
American colonies to Turkey, would the colonists have been under
obligations to accept the supremacy of the Sultan? Or if during
the civil war the United States had ceded the southern states to
P. I. Govt. 13.




194


PHILIPPINE GOVERNMENT


tion, ex-President Harrison in an address before the University of Michigan in December, 1900, said: "Our title
to the Philippines has been impeached by some upon the
ground that Spain was not in possession when she conveyed them to us. It is a principle of private law that a
deed of property adversely held is not good....  It
has not been shown, however, that this principle has been
incorporated into international law; and, if that could be
shown, there would still be need to show that Spain had
been effectively ousted." "  In the Diamond Rings Case 45
a contention was made that complete possession of the
Philippines was not taken by the United States.         The
Chief Justice said:
"The sovereignty of Spain over the Philippines and
possession under claim of title had existed for a long
series of years prior to the war with the United States.
Mexico, would the people within the ceded territory have been
under obligations to submit themselves to the wishes of the ruler
of Mexico? I think not.
"Let me quote from the law of nations as it is laid down by
Vattel. That writer, after conceding that in cases of necessity
one state may cede to another a portion of its territory, goes on to
say: 'When, therefore, in such a case the state gives up a town
or a province to a neighbor or to a powerful enemy the cession
ought to remain as valid as to the state, since she had the right
to make it; nor can she any longer lay claim to the town or
province thus alienated, since she has relinquished every right she
could have over it. But the province or town thus abandoned
and dismembered from the state is not obliged to receive the
new master whom the state attempted to set over it. Being separated from the society of which it was a member, it resumes all of
its original rights, and if it be capable of defending its liberty against
the prince who would subject it to his authority it may lawfully
resist him."' Henry Wade Rogers, former Dean of the Yale Law
School, now Circuit Judge, in an address on April 30, 1899, at
Central Music Hall, Chicago.
" 172 No. Am. Rev., Jan., 1901, p. 3. Same in Views of an
Ex-President, pp. 188, 189.
4s 183 U. S. 176, 46 L. Ed. 138 (1901).




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195


The fact that there were insurrections against her, or that
uncivilized tribes may have defied her will, did not affect
the validity of her title. She granted the islands to the
United States, and the grantee in accepting them took
nothing less than the whole grant.
"If those in insurrection against Spain continued in
insurrection against the United States, the legal title and
possession of the latter remain unaffected.
"We do not understand that it is claimed that in carrying on the pending hostilities the government is seeking
to subjugate the people of a foreign country, but, on the
contrary, that it is preserving order and suppressing insurrection in the territory of the United States. It follows that the possession of the United States is adequate
possession under legal title, and this cannot be asserted
for one purpose and denied for another. We dismiss the
suggested distinction as untenable."
An abstract of title to the Philippines would therefore
read: Spain's title to the Philippines rested on the public law of the period respecting discovery and occupation. In the words of Mr. Chief Justice Marshall the
"principle was that discovery gave title to the government by whose subjects, or by whose authority, it was
made, against all other European governments, which
title might be consummated by possession."" That
Spain had not reclaimed all parts of the Archipelago and
that she had not bent all its people to her will did not
affect her possession and so her legal title.47 That the
actual sovereignty of Spain had been displaced did not
imply that the right of sovereignty had been destroyed.
It was this title which Spain transferred to the United
States by the Treaty of Paris. It was this title which the
46Johnson v. McIntosh (1823) 8 Wheat. 543, 572, 5 L. Ed. 681,
688.
47 C. F. Randolph, Law and Policy of Annexation, pp. 1-4.




196


PHILIPPINE GOVERNMENT


Filipino people had the right to object to in the courts of
war but which was therein perfected by conquest in the
Filipino insurrection.
Such a title could only be contested by a foreign power.
Its determination, morever, is a political question binding
on the judiciary. No court could assume jurisdiction over
a matter of sovereignty-while "it is not to be doubted
that any international tribunal would affirm the completeness of our legal title to the Philippines." 48
Second Step-Presidential Government Instituted.
~ 69. Military   rule.-Commencing        with   the  destruction of the Spanish fleet on May 1, 1898, the American Navy and later its Army occupied Manila Bay and
Cavite.49 President McKinley issued instructions to the
Commander-in-Chief of the forces on May 19.50      Manila
surrendered on August 13.51     General Merritt assumed
the duties of Military Governor on August 26.
Following capitulation on August 14, General Merritt
issued a proclamation "to the people of the Philippines"
similar in phraseology to the instructions of the President. The proclamation 62 consisted chiefly of an enum48 Ex-President Harrison, supra. See Gray, J., in Jones v. U. S.
(1890) 137 U. S. 202, 212, 34 L. Ed. 691, citing cases.
i The battle of Manila is described in Autobiography of George
Dewey, Admiral of the Navy, Ch. XV; and by Rear-Admiral
Chadwick, in The Relations of the United States and Spain, Vol.
1, Ch. VI.
50 Richardson's Messages and Papers of the Presidents, Vol. X,
p. 208; Off. Gaz., Jan. 1, 1903, p. 1; Blount, The American Occupation of the Philippines, pp. 50-52. The period from May 1, 1898,
to August 13, 1898, is described in Autobiography of George
Dewey, id., Chs. XVI, XVII.
51 The taking of Manila is described in Autobiography of George
Dewey, id., Ch. XVIII; and by Rear-Admiral Chadwick id., Vol. 2,
Ch. XIX.
5a Printed in Off. Gaz., Jan. 1, 1903, p. 3.




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197


eration of the fundamental rules of international law concerning the rights and duties of a military occupant. The
administration of civil affairs was taken over; provost
marslall and other courts were organized; and the divisions of the Spanish administration were continued in
existence and reorganized, with American army officers
in clarge.53 The Secretary to the Military Governor was
charged with the duty of supervising the civil branch of
the government. As additional territory was brought under the control of the United States forces, civil administration was extended.
Certain accomplishments of the military of a civil nature were of such importance that they merit special mention. These include the promulgation of a tariff; organization of the schools, of the judiciary, and of local gov8 "General Merritt's first act of administration was to appoint
General MacArthur Provost-Marshall and Military Governor of the
walled town, and a day or two later he turned. over the administration of the finances to General Greene, who was to perform the
duties of the officer known as Intendente-Gencral de IHacienda,
appointed Major C. H. Whipple to take charge of the public funds,
and Lieutenant-Colonel Whittier to be collector of customs, with
Lieutenant-Colonel Colton as deputy. Then the other important
offices were filled as the necessities of the situation demanded,
Major Benent taking the position of collector of internal revenue,
Lieutenant-Colonel Jewett that of provost judge, and the duties of
captain of the port were entrusted to Captain Glass, of the navy.
Practically within a few hours after the signing of the terms of
capitulation, the new machinery of administration was set in
motion. The men appointed to office were all eminently fitted for
their different positions, and were familiar with operations similar
to those which they were to undertake. Hence there was little or
no delay in dealing with the complicated and intricate problems
which arose in the extraordinary situation, except that caused by
the Spaniards themselves, who stubbornly refused to give up their
offices, resorting to the most childish and undignified tricks to
obstruct and hinder the newly appointed officers in the performance
of their duties."  Millet, The Expedition to the Philippines, pp.
176, 177.




198


PHILIPPINE GOVERNMENT


ernments; negotiation of the Bates Treaty; and the sanction of the Negros Constitution.
The Spanish tariff on goods entering the Philippines
was continued in force until an order of the President
of July 12, 1898, modifying somewhat the schedules of
the Spanish law was put in force on November 10 of the
same year." The latter remained in full effects5 until
November 15, 1901, when the tariff established by Act
230 of the Philippine Commission became operative.
Within three weeks after Manila fell, seven schools
were opened in Manila under the direction of an army
chaplain.56 Enlisted men were detailed as teachers. The
school system was enlarged as rapidly as was practicable.
Civil courts 7 were not permanently established until
the issuance of General Orders No. 20 of the Military
Governor on May 29, 1899, and of General Orders No.
21 on June 5, 1899.     The Supreme Court and inferior
courts had previously been suspended in their criminal
jurisdiction since August 13, 1898, and the Supreme
Court as to civil affairs since January 20, 1899. In the
interval, provost marshall courts, court marshalls, and
military tribunals, under army officers, controlled judicial
matters. Military commissions existed until the Amnesty
Proclamation by the President of July 4, 1902.58 General Orders No. 2069 constituted a Supreme Court of
54 See Government of the Philippine Islands v. Standard Oil Co.
(1911) 20 Phil. 30, 35.
55 But see Warner, Barnes & Co. v. U. S. (1905) 197 U. S. 419,
49 L. Ed. 816, (1906) 202 U. S. 484, 50 L. Ed. 1117.
56 Census of the Philippines, 1903, Vol. III, p. 639.
67 See generally, Report of the Military Governor, 1899, pp. 58-60,
241-244; Report, First Philippine Commission, 1900, Vol. I, pp.
122-124; Census of the Philippine Islands, 1903, Vol. I, pp. 407-409.
58 Cabantag v. Wolfe (1906) 6 Phil. 273.
59 Printed in Report of the Military Governor, 1899, p. 242, and
in the Off. Gaz. for May 1, 1903, at page 5. "The most distinguished
lawyer in the Islands, Don Cayetano Arellano, was appointed




GOVERNMENTAL STEPS


199


nine judges, six of whom      were distinguished Filipino
lawyers and three officers of the American Army with
legal experience.    General Orders      No. 21 6    created
Courts of First Instance and justice of the peace courts
for each of the four judicial districts of the city of
Manila. Subsequently the Courts of First Instance of
several provinces were reorganized.61 These courts were
given the jurisdiction, which they had prior to American
occupation, administering those laws continuing in force
except as modified by authority of the United States.
Offenses prejudicial to military administration and
discipline continued to appertain to the military courts.
In response to a public petition, Baliuag, in May, 1899,
became the first town to hold an election under American
supervision.62   Four Cavite municipalities followed suit.
General Orders No. 43,8 dated August 8, 1899, was
President of the Supreme Court. Other members of the bench were
drawn, not only from Luzon, but also from the Visayan Islands.
They are all men of high professional reputation and spotless
character. In the civil bench of the court Don Manuel Araullo is
the president. The associate justices were Don Gregorio Araneta
and Lieut. Col. E. H. Crowder, Judge-advocate United States
volunteers. In the criminal branch Don Raymundo Melliza was
appointed president. The associate justices were Don Ambrosio
Rianzares; Don Julio Llorente; Maj. R. W. Young, Utah Volunteer
Light Artillery; and Col. W. E. Birkhimer, U. S. V. The AttorneyGeneral was Don Florentino Torres." Report of the First Philippine Commission, Vol. 1, pp. 122-124.
60 Report of the Military Governor, 1899, pp. 243, 244.
61 Reorganization of Courts under the military government described in detail by Gregorio Araneta, Cablenews-American Yearly
Review Number, 1911, p. 32.
62 Le Roy, The Americans in the Philippines, Vol. II, pp. 68, 283,
284.
68 Printed in Off. Gaz., Jan. 1, 1903, p. 7. See also Annual
Report of the Military Governor, 1899, pp. 239, 240. The framework
of the municipal government at San Fernando, Pampanga, is given
by Robinson, The Philippines: The War and the People, pp. 307,
308.




200


PHILIPPINE GOVERNMENT


thereafter issued providing a rough plan drawn from
former Spanish decrees and customs for temporary local
governments along the railroad and within the territory
of American occupation. A few months later a board
consisting of Chief Justice Arellano, Attorney-General
Torres, and three American judicial officers 64 reported
a general statute for the organization of municipalities,
based to a considerable degree on the Maura Law, which
was promulgated as General Orders No. 40 65 on March
29, 1900.    Comparatively    few  towns were organized
6 Appointed by G. O. No. 18 of January 29, 1900. Otis's Report,
1900, pp. 280, 281.
66 Printed in Otis's Report, 1900, pp. 281-291 and in I Off. Gaz.,
Jan. 1, 1903, p. 11. The first three paragraphs read:
"Manila, P. I., March 29, 1900.
"The board of which his honor, Don Cayetano Arellano, Chief
Justice of the Philippines, is president, and which was called in
General Orders, No. 18, of January 29 last, from  this office, to
submit a form of municipal government for such of the imunicipios
of the Islands as are prepared to adopt representative control over
their own civil affairs, and which may become applicable to others
as soon as they demonstrate a fitness for self-administration, having
reported a plan of government which meets existing conditions, the
same is approved and will receive practical application in accordance
with the mode of procedure therein outlined.
"It is with great satisfaction that the United States authorities,
in consonance with former promises, promulgates in this order
the law by which the municipalities of the towns of the Philippines
are to be established and goverred in the future.  The law is
inspired by a genuinely liberal spirit and the principles of
autonomous government. It is in itself educating. It is calculated
to urge on the people in the path of true progress, if they are
desirous to understand their duties as free citizens and make legitimate use of their privileges.
"For the first time the Philippine people are to exercise the
right of suffrage in the election of municipal officers-a right only
slightly restricted by conditions which have been imposed for the
purpose of rewarding as well as encouraging the people in their
just and natural aspirations to become educated, and worthy to
enjoy all the benefits of civilization."




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201


under this order before the Commission began to exercise its functions.66
An agreement, known as the "Bates Treaty" 67 was
negotiated by General John C. Bates with the Sultan of
Sulu and his powerful chiefs on August 10, 1899.        The
treaty while declaring and recognizing the sovereignty
of the United States, left the actual affairs of government
in the Sultan's hands. It was confirmed by the President
but not by Congress. Becoming a source of embarrassment, the so-called "treaty" was abrogated on March 21,
1904,   as  an   obstacle to   direct  control   and   good
government.68
66 William  H. Taft, Civil Government in the Philippines, 71;
Outlook, May 31, 1902, p. 305.
67 See President McKinley, Third Annual Message, Dec. 5, 1899;
Senate Document 136, 56th Congress, 1st Sess., p. 28; Harper's
History of the War in the Philippines, pp. 239-243, 403-405. Negotiations described by General Otis in Report for 1899, p. 156.
Facsimile of the Agreement entered into with the Sultan of Sulu,
August 20, 1899, from the original in the Department of State,
Washington, in McKinley, Island Possessions of the United States,
pp. 200, 201; quoted pp. 283, 284.
68 "The treaty continued in force until March 21, 1904. This
so-called 'treaty' was the source of much embarrassment and difficulty almost from the moment it was signed. General Bates had
fallen into the serious error of supposing that the 'Sultan' of Sulu
exercised some real control over the Moros, whereas the truth
turned out to be that he was but one of a group of chiefs. The
treaty itself was highly unsatisfactory, even in the English version,
which General Bates supposed represented the Sultan's understanding of the agreement. In brief, the agreement provided that the
religion and customs of the Moros should be maintained, and that
salaries aggregating about $9,120 annually should be paid by our
government to the Sultan and his chief men. In return, the authority
and sovereignty of the United States were nominally recognized,
and this was substantially the only concession made to our government... But the Bates treaty, in the eyes of the Moros
themselves, was a document very different in character from that
which General Bates supposed he had signed.   Neither he nor
any of his associates understood a word of the Sulu language, and




202


PHILIPPINE GOVERNMENT


In Negros with the assistance of its military governor,
a premature scheme to establish civil government was
inaugurated." Delegates met in constitutional convention and after long labors framed an elaborate constitution, following largely the framework of a State of
the American Union, for submission to the President
of the United     States.  This scheme was found        too
complicated and expensive. Hence, the Military Governor of the Philippines promulgated a modified form
of provisional government as General Orders No. 3070
on July 22, 1899. The system of government, thereunder, provided for a civil governor and an advisory
council of eight members to be elected by voters with
property or educational qualifications, and judicial and
departmental officials to be appointed by the Military
Governor.    The Military Governor was, however, left
supreme, with command over the troops, with all authority not granted the Civil Governor, and with the right
to veto any act of this official.    Elections were held;
civil government was duly organized November 6, 1899;
general public affairs received attention. The experiment
was   abandoned     in  1901   as   too  burdensome    and
pretentious.
a study of the native copy of the treaty in the vernacular shows
that he must have been grossly deceived. Article I of the English
version reads 'The sovereignty of the United States over the whole
Archipelago of the Sulu and its dependencies is declared and acknowledged,' but a careful translation of the document from Sulu into
English would be 'The support, aid, and protection of the Sulu
Island and Archipelago are in the American nation'-a very different
statement." Willis, Our Philippine Problem, pp. 87-89, Note.
69 See Le Roy, The Americans in the Philippine, Vol. II, pp. 105 -112; Harper's History of the War.in the Philippines, p. 231; Otis's
Report, 1899, pp. 122-128; Otis's Report, 1900, pp. 208, 213, 215;
Reports, War Dept., 1899, 1900.
70 Printed in the Off. Gaz. for Jan. 1, 1903, at p. 6; as exhibit
V, Vol. 1, Report of the Philippine Commission, 1900; and in
General Orders and Circulars, Military Governors, 1899, 1900.




GOVERNMENTAL STEPS


203


The order of the President, known to some as the
"benevolent assimilation proclamation," 7 issued from
the executive mansion on December 21, 1898, stating that
the authority of the United States was to be "extended
with all possible dispatch to the whole ceded territory,"
made known to the Filipinos by General Otis in more
palatable form, was the order of the President having
most effect during this period on the relations of the
Filipinos and Americans. General Orders No. 58, regulating criminal procedure, and General Orders No. 68,
concerning marriage, were the two laws of importance,
promulgated by the Military Governor, and still in
existence.7
Everything which was done by the Military Commander or the Military Governor was in pursuance of
that absolute and supreme domain recognized by international law  and American usage,78 which, as to the
Philippines, was reiterated emphatically by the President
in his instructions of May 19, 1898, and in his Proclamation of December 21 of the same year. Such action
by military authorities exists by virtue of the general
power vested in the President of the United States as
commander-in-chief of the military forces.   The rule '
is that military power, when exercised in a territory
under military occupation, includes executive, judicial,
and legislative authority.76 During belligerent occupa71 See Senate Document 331, pp. 776-78; Le Roy, The Americans
in the Philippines, Vol. I, pp. 399-403; Blount, The American
Occupation of the Philippines, Ch. VIII.
72 Described in sec. 159 infra.
78 New Orleans v. Steamship Co. (1874) 20 Wall. 394, 22 L. Ed.
358.
74 See generally Magoon's Reports, pp. 11-36; U. S. v. Bull
(1910) 15 Phil. 23; Op. Judge Advocate General, Sept. 30, 1909;
Rowe, The United States and Porto Rico, pp. 22-28; Halleck's
International Law, p. 776.
76 Report of Secretary of War Root, 1901.




204


PHILIPPINE GOVERNMENT


tion, the power of the military commander flows directly  from   the  laws   of  war, and    is  free  from
constitutional limitations on executive, legislative, and
judicial powers.76 On the cessation of military operations,
the military commander is subject to certain rules of
law, of which the most important is the principle of
"immediate exigency" or "necessity." 7     "The authority
of a military government during the period between the
cession and the action of Congress, like the authority of
the same government before the cession, is of large,
though it may not be of unlimited, extent."78 The
treaty of peace does not affect the existence of military
government; the powers of the Military Governor continue even after war has ceased through a period of
readjustment to a subsequent date when Congress can
act in its legislative capacity.79  Yet the status of the
military government does undergo       some change, for
while prior to the ratification of the treaty of peace the
military is merely a substitute for a suspended or displaced sovereignty, after the ratification of the treaty,
the military represents the new sovereignty and becomes
a provisional civil authority. Its paramount purpose then
becomes to create conditions which will merge into civil
government.     Notwithstanding   the advantage of un76Fleming v. Page (1850) 9 How. 616, 13 L. Ed. 281; Cross v.
Harrison (1853) 16 How. 164, 193, 14 L. Ed. 889, 901; Leitensdorfer v. Webb (1858) 20 How. 176, 177, 15 L. Ed. 891; In re
Allen (1903) 2 Phil. 630.
77 Raymond v. Thomas, 91 U. S. 712; Professor L. S. Rowe, XX
Ann. Am. Acad. of Pol. and Soc. Sci., Sept., 1902, p. 9.
78 Santiago v. Nogueras (1909) 214 U. S. 260, 53 L. Ed. 989,
followed in Duarte v. Dade (1915) XIII O. G. 2006. See also
Ochoa v. Hernandez (1913) 230 U. S. 139, 57 L. Ed. 1427.
79Cross v. Harrison (1853) 16 How. 164, 193, 14 L. Ed. 889,
901; Dooley v. U. S. (1901) 182 U. S. 222, 234, 45 L. Ed. 1074,
1082; Op. Judge Advocate Gen., Sept. 30, 1909; In re Allen (1903) 2
Phil. 630.




GOVERNMENTAL STEPS


205


hampered action which a military government enjoys,
the disadvantages of the effect on the people make desirable the substitution of civil authority as soon as
possible.
In the Philippines the Military Commander or Military
Governor in conformity with these general rules first
exercised all three powers. He voluntarily established
and recognized a civil judiciary. He lost his legislative
authority with the installation of the Philippine Commission on September 1, 1900. He gave up a portion of his
executive authority with the inauguration of a Civil Governor on July 4, 1901. He relinquished all civil power
(except as to the Moro Province continued until September, 1914) one year later.
Third Step-Investigation and Conciliation.
~ 70. The first Philippine Commission, familiarly
styled "The Schurman Commission" from the name of
its President, was composed of Jacob Gould Schurman,
President of Cornell University, Major-General Elwell
S. Otis, Military Governor of the Philippines, RearAdmiral George Dewey, Commander of the Asiatic
squadron, Charles Denby, former Minister to China,
and Dean C. Worcester, a Professor of the University
of Michigaan, who had made two scientific expeditions
to th-e-Philippines. The civilian members assembled at
Washington on January 18, 1899, and received the
President's instructions.80 The cause for the appointment
of such a Commission, as indicated in these instructions,
was the consummation of the treaty of peace and the
necessity of extending the actual occupation throughout
the Islands. To assist the President in carrying into
effect a policy in regard to the Philippines, or in the words
m Printed as Exhibit II, Report, First Philippine Commission;
and in Worcester, The Philippines and Present, Appendix, p. 975.




206


PHILIPPINE GOVERNMENT


of the President of the Commission "To aid the Government at Washington in shaping that policy, and to
co-operate with the naval and military authorities at
Manila in the effective extension of American sovereignty
over the archipelago," were the principal functions which
the President assigned to the Commission.81    In the
language of another member "We were sent to deliver
a message of good-will, to investigate, and to recommend,
and there our powers ended." 82
The Commission reached Manila on March 4, 1899.
It soon discovered "that the insurgents grossly misconceived the intentions of the United States in regard to
the Philippines. To enlighten them and to win their
confidence became, therefore, our primary aim." 83 At
an opportune time, namely on April 4, "when the American Army was driving the Philippine Army before it"
the Commission issued a proclamation to the people of
the Philippine Islands in order "to exhibit beyond the
possibility of misapprehension the liberal, friendly, and
beneficent attitude of the United States to the people of
the Philippine Islands." 84  In its conclusion, certain
regulative principles of cardinal importance which were
to guide the relations of the United States with the
Filipino people, were outlined as follows:
"1. The supremacy of the United States must and will
be enforced throughout every part of the Archipelago,
and those who resist it can accomplish no end other than
their own ruin.
81 Philippine Affairs, A Retrospect and Outlook, An Address by
Jacob Gould Schurman, President of the First Philippine Commission, before the Members of Cornell University, pp. 1-8
8 Worcester, supra, Vol. I, pp. 301, 302.
88 Schurman, supra.
8 Schurman, supra. Proclamation printed in Report, First Philippine Commission, Vol. I, pp. 3-5 and in Worcester, The Philippines
Past and Present, Vol. II, Appendix, p. 977.




GOVERNMENTAL STEPS


207


"2. The most ample liberty of self-government will be
granted to the Philippine people which is reconcilable
with the maintenance of a wise, just, stable, effective,
and economical administration of public affairs, and
compatible with the sovereign and international rights
and obligations of the United States.
"3. The civil rights of the Philippine people will be
guaranteed and protected to the fullest extent; religious
freedom assured, and all persons shall have an equal
standing before the law.
"4. Honor, justice, and friendship forbid the use of
the Philippine people or Islands as an object or means of
exploitation. The purpose of the American Government
is the welfare and advancement of the Philippine people.
"5. There shall be guaranteed to the Philippine people
an honest and effective civil service, in which, to the
fullest extent practicable, natives shall be employed.
"6. The collection and application of taxes and revenues will be put upon a sound, honest, and economical
basis. Public funds, raised justly and collected honestly,
will be applied only in defraying the regular and proper
expenses incurred by and for the establishment and
maintenance of the Philippine government, and for such
general improvements as public interests may demand.
Local funds, collected for local purposes, shall not be
diverted to other ends. With such a prudent and honest
fiscal administration, it is believed that the needs of the
government will in a short time become compatible with
a considerable reduction in taxation.
"7. A pure, speedy, and effective administration of
justice will be established, whereby the evils of delay,
corruption, and exploitation will be effectually eradicated.
"8. The construction of roads, railroads and other
means of communication and transportation, as well as
other public works of manifest advantage to the Philippine people, will be promoted.




208


PHILIPPINE GOVERNMENT


"9. Domestic and foreign trade and commerce, agriculture, and other industrial pursuits, and the general
development of the country in the interest of its inhabitants will be constant objects of solicitude and fostering
care.
"10. Effective provision will be made for the establishment of elementary schools in which the children of
the people shall be educated. Appropriate facilities will
also be provided for higher education.
"11. Reforms in all departments of the government,
in all branches of the public service, and in all corporations closely touching the common life of the people must
be undertaken without delay and effected, conformably
to right and justice, in a way that will satisfy the wellfounded demands and the highest sentiments and aspirations of the Philippine people."
The Commission reported that this proclamation "had
a wide and continuing influence." 85
The Commission spent its remaining time in hearing
witnesses of various nationalities and from all classes.
Emissaries from the Revolutionary Government also
sought interviews.
The Commission was recalled in September. It made
a preliminary report of a few pages on November 2,86
and later, on January 31, 1900, a final report of four
volumes, which the President transmitted to Congress.
This report was comprehensive and contained valuable
information on Philippine history, institutions, and conditions. It earnestly recommended 7 a territorial form
8s Report, p. 6.
86 Printed as Exhibit I, Vol. I, p. 169 of final report.
87 In connection with the subject of government the Commission
reached the following conclusions:
"1. The United States can not withdraw from the Philippines.




GOVERNMENTAL STEPS


209


of government of the first class, following the Jeffersonian scheme of government for Louisiana, with an
elected lower house and an upper hlouse, half elected and
half nominated
We are there and duty binds us to remain. There is no escape from
our responsibility to the Filipinos and to mankind for the government of the Archipelago and the amelioration of the condition of
its inhabitants.
"2. The Filipinos are wholly unprepared for independence, and
if independence were given to them they could not maintain it.
"3. As to Aguinaldo's claim that he was promised independence
or that an alliance was made with him, Admiral Dewey makes
the following communication to the Commission:
"The statement of Emilio Aguinaldo, under date of September
23, published in the Springfield Republican, so far as it relates to
reported conversations with me, or actions of mine, is a tissue of
falsehoods. I never, directly or indirectly, promised the Filipinos
independence. I never received Aguinaldo with military honors,
or recognized or saluted the so-called Filipino flag. I never considered him as an ally, although I did make use of him and the
natives to assist me in my operations against the Spaniards.'
"4. There being no Philippine nation, but only a collection of
different peoples, there is no general public opinion in the Archipelago; but the men of property and education, who alone interest
themselves in public affairs, in general recognize as indispensable
American authority, guidance, and protection.
"5. Congress should, at the earliest practicable time, provide for
the Philippines the form of government herein recommended or
another equally liberal and beneficent.
"6. Pending any action on the part of Congress, the Commission
recommends that the President put in operation this scheme of civil
government in such parts of the Archipelago as are at peace.
"7. So far as the finances of the Philippines permit, public education should be promptly established, and when established made
free to all.
"8. The greatest care should be taken in the selection of officials
for administration. They should be men of the highest character
and fitness, and partisan politics should be entirely separated from
the government of the Philippines."  (VoL I, p. 121.)
P. I. Govt.-14.




210


PHILIPPINE GOVERNMENT


Fourth Step-Filipino Co-operation.
~ 71. The Federal Party 8 should be considered
here rather than later with political parties because more
a temporary and useful phase of American reconstruction
under Filipino auspices than a mere political organization.
The conciliatory proclamation of the Schurman
Commission enabled conservative Filipinos favoring
peace and acknowledgment of American sovereignty to
form a party known as "Autonomists," 89 finding its
counterpart in name and principles in Porto Rico in 1898.
On December 23, 1900, the movement took definite form,
under the name "the Federal Party" at a meeting presided over by Mr. Florentino Torres, and attended by
such prominent Filipinos as Messrs. Tavera, Buencamino,
Ner, Arguelles, Dancel, Fabie, Yangco, and Arellano;
and Dr. Frank S. Bourns. Their purpose in the words of
the prime mover, Dr. T. H. Pardo de Tavera, was "to
constitute a party which, accepting American sovereignty,
could bring about peace and permit the Filipinos under
those conditions to petition the United States for such
rights and privileges as they might desire, by the employment of lawful means." 9      A  manifesto was read
and a platform   was adopted.
88 See A History of the Federal Party. by T. H. Pardo de Tavera,
Report, Philippine Commission, 1901, Vol. I, Appendix A, pp. 161 -165.
89 Philippine Affairs, A Retrospect and Outlook, An Address by
Jacob Gould Schurman, President of the First Philippine Commission, before the Members of Cornell University, pp. 8-10, quoting
a letter of Justice Torres to General McArthur; Annual Report of
the War Department, 1901, Part II, pp. 120, 121; Rowe, The
United States and Porto Rico, pp. 244, 247.
90 Letter to Maj. Gen. Arthur MacArthur, Miltary Governor in
the Philippines, Manila, P. I., May 14, 1901, Congressional Record,
Vol. 35, Part II, pp. 1655, 1656. "The main object of this organization was to bring about peace in the islands and to co-operate with
the commission, of which the Hon. William H. Taft was presi



GOVERNMENTAL STEPS


211


Delegates were sent into the provinces to organize
auxiliary committees. In a few months the Federal
Party numbered 150,000.     Excepting an abortive peace
movement under the name "Partido Conservador," '9 the
Federal Party remained the only party of the reconstruction period.
In its initial object, to bring about peace under the
sovereignty of the United States, the party co-operated
with the Second Philippine Commission with valuable
results.  Mr. Worcester, a member of the Commission
at that time, has stated that "the establishment of civil
government throughout so large a proportion of the
provinces in the Islands would have been impossible at
this time had it not been for the helpful activities of the
Federal Party...      They convinced many of the
common people of the true purposes of the American
government, and in numerous other ways rendered invaluable services." 92 Later, the platform of the party
was expanded to include a plank asking for territorial
government with representation     in Congress, leading
finally to statehood.98 Yet even from the beginning there
were those in the party who, while joining because opdent." T. H. Pardo de Tavera in Census of the Philippine Islands,
1903, Vol. I, p. 388. "It was organized to secure peace for this
country under the sovereignty of the United States."  Report,
Philippine Commission, 1901, Vol. I, p. 7. 
91 The Manila American, for February 26, 1901, describes this
movement; The Philippine Problem, September 15, 1901, first series,
p. 71, foot-note.
92 Worcester, The Philippines Past and Present, Vol. I, pp.
334, 341.
93 Report, Philippine Commission, 1901, Vol. I, p. 164. "FEDERAL
PARTY-MESSAGE TO THE CONGRESS OF THE UNITED
STATES OF AMERICA ACCORDED IN EXTRAORDINARY
ASSEMBLY, NOVEMBER, 1901, MANILA.
"To the Congress of the United States:
"The Federal Party, assembled in extraordinary convention,




212


PHILIPPINE GOVERNMENT


posed to war, did so, without abandoning a desire to
obtain independence by peaceful propaganda. This idea
is well presented by the active head of the Progresista
Party, the successor of the Federal Party-"At the becalled pursuant to its by-laws, resolved under this date to transmit
to the Congress of the United States a memorial of the tenor
following.
FIRST PART-PETITION FOR ANNEXATION AND FORM
OF GOVERNMENT.
"The Federal Party has made an exhaustive study of the sentiments of the Filipino people, as well as those animating the American
people, with respect to determining the future of these Islands.
"From the mass of data which the Federal Party has had before
it, and seriously and formally considered, it is clearly deduced that
the intention of the Americans and Filipinos is to constitutionally
join the Philippines to America in such a way that the former may
never be separated from the latter, nor the latter disunited from
the former..
"To make of the Philippines a colony of the United States
or to grant independence to the Philippines would be to hand the
Islands over to disorder and to anarchy, to destruction and chaos.
"In effect the colonial system involves the principles of difference
of citizenship, inequality of rights, and other consequent abuses
and injustices, of all of which we Filipinos were surfeited under
the Spanish government, and for this reason we reject everything
which tends toward a colony.
"Philippine independence, with or without a protectorate, means
the holding of power by all the terrible elements of the sects which
predominate, and would predominate still for some years, until
the anger of the Filipinos toward Filipinos shall have been completely calmed, education become more general, and the fanaticism
we have inherited from Spain exiled.
"Federation or annexation would settle all these difficulties by
concentrating the interests of the Filipino people upon education
and labor, the most efficient means for bringing about a prompt
uplifting.
"The Federal Party can assure the Congress that the foregoing
is the true opinion of the best elements and greater part of the
Filipinos, as is evidenced by the annexed report of the Federal
Party, which was made by direction of General MacArthur, and
which has all the character of an official document.




GOVERNMENTAL STEPS


213


ginning, the Federal Party was partly composed of those
who had taken part in the revolution, but who were then
sincerely in favor of peace, of the adoption of a government upon the American        plan, and of a process of
evolution in order to bring this all happily about. Others
came into the party when they became convinced of the
intention of the United States to retain the islands, and
they cherished for a time the hope of forming a part
of the American Union, believing in good faith that,
having lost the hope of independence, the best opportunity for the Filipinos was to enjoy the same rights
as are enjoyed by the citizens of the Republic that had
come to assume sovereignty over the country.          Many
others, and these formed the majority, when they saw
that tle war was both useless and prejudicial, and that
to compel the United States to grant independence was
not feasible, proposed to themselves first of all to work
with the Federal Party for the pacification of the country,
but witlout abandoning       the idea of attaining     inde"In behalf, then, of the Federal Party, this convention has the
honor to very respectfully present to the Congress the following
petition praying a declaration by the Congress of the United
States to the effect that the Philippine Islands as they are described
in the Treaty of Paris and subsequent conventions with Spain, are
an integral part of the Republic of the United States of America,
the said Philippine Islands constituting a territory with the rights
and privileges which the Constitution of the United States grants
to the other territories, such as that of becoming eventually a
state of the Union.
"Therefore the Federal Party proposes the following form of
territorial government.
"In this second part the Federal Party suggests to the Congress
the fulfillment of other great aspirations of the country of a
social and economical character by recommending the adoption
of adequate measures within the sovereign attributes of the
Congress..
"Manila, November 9, 1901." Vol. 35, Part II, Congressional
Record, pp. 1653-1655.




214


PHILIPPINE GOVERNMENT


pendence later on, by peaceable means and by appealing
to the sense of justice of the American people." 94 Such
differences finally led to internal divisions and final
dissolution.
Fifth Step-Quasi-Civil Government Begun.
~ 72. The    second   Philippine   Commission.95-By
the time the first Philippine Commission had completed
its work, conditions in the Philippines had so far improved that the President believed that civil government
could be initiated. With this end in view, a new Commission was appointed on March 16, 1900, composed of
William H. Taft, President, and Dean C. Worcester,
Luke E. Wright, Henry C. Ide, and Bernard Moses,
members. Only one, Mr. Worcester, had been a member
of the first Commission.     In contrast with the former
Commission, all were civilians; in contrast also, the new
Commission was to be not an advisory body, but a civil
agency with ample powers.
Authority for the creation of the Commission was
found in an analysis of the military power of the Presidlent.  In the analytical language of Elihu Root, then
Secretary of War, "The question presented was how in
the exercise of the President's military power under the
94 Juan Sumulong, The Philippine Problem from a Filipino Standpoint, 178 No. Am. Rev. 1904, pp. 865, 866. "It was their devise
in a roundabout way to secure immediate Philippine independence,
if not absolutely, at least in large measure, and especially in the
shape of immunity from the arbitrary and unlimited powers of
Congress, of which they stood in dread." Jacob Gould Schurman,
President of the First Philippine Commission, supra.
95 See generally Report of the Commission, Nov. 30, 1900: Report
1901, 2 Vols.; Taft, Civil Government in the Philippines, 71 Outlook, May 31, 1902, p. 305; Williams, The Odyssey of the Philippine Commission; Worcester, The Philippines Past and Present,
pp. 325 et seq.; Le Roy, The Americans in the Philippines, Vol II,
pp. 275 et seq.




GOVERNMENTAL STEPS


215


Constitution to give the peaceful people of the Philippines
the real benefit of civil government.  The question was
answered by an analysis of the military power, which,
when exercised in a territory under military occupation,
includes the executive, judicial and legislative authority.
It was, accordingly, determined that as the
fundamental step of giving the substance of civil government to the people of the Philippines there should be a
separation of these powers so that the executive, the
legislative and the judicial powers should be exercised
by different persons throughout the classified territory,
and as it is well settled that the military power of the
President in occupied territory may be exercised through
civil agents as well as military officers, it was determined
that that part of the military power which was legislative
in its character should be exercised by civil agents proceeding in accordance with legislative forms, while the
judicial power should be exercised by particular establishments and regulated by the enactments of legislative
authority." 96
For the guidance of the Commission, the President
issued Instructions 97 on April 7, 1900, said to have been
prepared by Mr. Root.       This State paper has been
characterized by eminent authorities 98 as "the Magna
Charta of the Philippines;" "the most nearly perfect
96 See also testimony of Civil Governor Taft before the Committee on Insular Affairs, 1902, p. 75.
97 Printed in the annual message of President McKinley to Congress on December 3, 1900; Compilation of the Acts of the Philippine Commission; Vol. I, Philippine Laws, etc. Mr. Taft is authority for the statement that the Instructions were drawn by Mr.
Root. 1 Off. Gaz., Dec. 23, 1903, Supplement.
98 Le Roy, The Americans in the Philippines, Vol. II, p. 278;
Forbes-Lindsay, America's Insular Possessions, Vol. II, pp. 205,
206; Willoughby, Territories and Dependencies of the United
States, p. 179; McKinley, Island Possessions of the United States,
p. 243, etc.




216


PHILIPPINE GOVERNMENT


example of organic law, jurisprudence, guarding of
rights, distribution of powers, administrative provisions,
checks and balances, civilization ever beheld in a single
document;" "in the documentary history of the government of dependent territories by the United States it will
always occupy a leading place side by side with that of
the Northwest Ordinance. Its significance lies in the fact
that in its few pages is formulated, in the most authoritative way, the whole theory of the American people in
respect to the government of dependencies;" "probably
no more reasonable and charitable basis for colonial
government is to be found in the history of modern
colonization." The writer would join with his meed of
appreciation for this remarkable state paper which gave
the Philippines all the best and basic of enligltened
Anglo-Saxon jurisprudence-a worthy rival of the Laws
of the Indies. By the Instructions, the powers of the
Commission were to be that part of the military power
of the President in the Philippines, which was legislative
in character, with certain executive functions, including
the right to make appointments. In its conclusion, after
recalling that the pledge made in the articles of capitulation of the city of Manila had been fully kept, the President said: "As high and sacred an obligation rests upon
the Government of the United States to give protection
for property and life, civil and religious freedom, and
wise, firm, and unselfish guidance in the paths of peace
and prosperity to all the people of the Philippine Islands.
I charge this Commission to labor for the full performance of this obligation, which concerns the honor and
conscience of their country, in the firm hope that through
their labors all the inhabitants of the Philippine Islands
may come to look back with gratitude to the day when
God gave victory to American arms at Manila and set
their land under the sovereignty and protection of the
-people of the United States."




GOVERNMENTAL STEPS


217


The Commission, upon its arrival in Manila on June
3, only issued an informal announcement of its purposes
to the public press." In conformity with the President's
Instructions, the Commission spent the time until September 1 in investigating conditions. On this date it
began its legislative and executive duties. A simple announcement 100 was issued, quoting certain clauses of its
instructions and stating that the fullest opportunity for
public consideration and criticism of proposed measures
would be granted. This policy, according to the President of the Commission, "furnished to the Filipinos
ocular demonstration of what, if peace followed, might
be expected in the way of civil government." 101 The
sessions of the Commission were, consequently, stated,
and public.  Legislative forms were followed.    "It
adopted the policy of passing no laws, except in cases
of emergency, without publishing them in the daily press,
nor until after they had passed a second hearing and the
public had been given an opportunity to come before
the Commission and suggest objections or amendments
to the bills. Before enacting them they were submitted
to the Military Governor for his consideration and
comment." 10
From September 1, 1900, to July 4, 1901, the Commanding General of the Army remained as civil executive as well.  The President of the Commission has
stated that "This was a good arrangement, because it
kept up the interest of the military branch in the development of the municipal governments until many could
stand alone, and it enabled the Commission to secure
99 See Report of Commission of November 30, 1900, Exhibit A.
100 Id., Exhibit B.
101 Statement of William H. Taft, Hearings before the Committee
on Insular Affairs, p. 6.
102Taylor, 18 HS, cited by Worcester, The Philippines Past
and Present, Vol. I, p. 334.




218


PHILIPPINE GOVERNMENT


through the Executive, during the transition from a
military to a civil regime, the assistance of the armly." A"
During this period, the Commission accompli;l.,l nlmt, 1
valuable work. In a legislative way, the first law 'vpassed was an appropriation of $2,000,000 Mexican for
the construction and repair of highways and britl,s. r 
second Act began the survey for a route into Latuli ).
Then   followed   important laws 05 providing      for-t. 
organization of a civil service on the basis of merit; 
the order of procedure in the enactment of laws;'        t..e
108 William H. Taft, Civil Government in the Philippines, 71 Outlook, May 31, 1902, p. 305, printed in The Philippines, p. 35.
04 "We were impressed with the fundamental necessity of
promptly opening up lines of land communication in a country
which almost completely lacked them, and there were many poor
people in dire need of employment who would be relieved by the
opportunity to earn an honest living which the inauguration of
road construction would afford them. Our second act appropriated
$5,000 Mexican for the purpose of making a survey to ascertain
the most advantageous route for a railroad into the mountains of
Benguet, where we wished to establish a much-needed health resort
for the people of the Archipelago." Worcester, The Philippines,
Past and Present, Vol. I, p. 332. See also Williams, The Odyssey
of the Philippine Commission, p. 90.
105 See generally William H. Taft, id.
106 No. 5. "The fifth law which was enacted by the Commission
was the civil service law, which is believed to extend the merit
system further than it has ever been extended in this country. It
is an indispensable condition precedent to any proper civil government in the Islands." William H. Taft, Civil Government in
the Philippines, 71 Outlook, May 31, 1902, p. 305, printed in The
Philippines, p. 36; see further Report of the Commission, Nov.
30, 1900, pp. 20-23; and Gazetteer of the Philippine Islands, p. 159.
107 No. 6. "All of this elaborate mechanism is completely vitiated
by the second section of the act:
"'The order of procedure herein provided shall not be obligatory
whenever the Commission shall determine that the public good
requires the more speedy enactment of law.'" Willis, Our Philippine Problem, pp. 42, 43.




GOVERNMENTAL STEPS


219


government of Benguet; 10 the schools; 10 a Municipal
Code; 11 a provincial government Act; the organization
of the judiciary; and a Board of Health."1 In an executive way, administrative bureaus were created or reorganized. Of even more effect was the fact that "The
Commission reached the conclusion that it would aid in
the pacification of the country; would make the members
108 Nos. 48, 49. "It has fallen to the Igorotes of Benguet to be
the first of the island people to receive civil government. Two
acts have been passed, one extending a form of civil government to
the townships and the other to the province."   Williams, The
Odyssey of the Philippine Commission, pp. 119, 120.
109 No. 74. "The present school system in the Philippines was
organized under the direction of Dr. Fred W. Atkinson, who assumed the position of general superintendent of public instruction
September 1, 1900.   He drafted the first act providing for a
general system of public instruction in the Philippines, which was
passed, with a few modifications, as Act 74 of January 21, 1901,
amended by Acts 477 and 525 of 1902. It constitutes the organic
school law of the Islands at present." Prescott F. Jernegan, Census
of the Philippine Islands, 1903, Vol. III, p. 641; see further Gazetteer
of the Philippine Islands, p. 160.
110 No. 82. "The Municipal Code makes the government of the
towns practically autonomous. While it was the aim to keep the
law simple, it was found necessary to specify in considerable
detail the powers and limitations of the different municipal officers.
Under Spanish administration a public official may have been
responsible to those above, but seldom or never to those beneath
him. Saturated as the people are, therefore, with the idea that
any demand made by a person in authority must be obeyed, the
present law lays stress upon the fact that the government now
sought to be implanted is one of limited and prescribed powers,
and that public officials have no rights beyond those expressly
conferred upon them." Williams, id., p. 140. See Report, November
30, 1900, pp. 37-44.
111 No. 157. "There was promptly created an efficient board of
health made up of men of recognized ability and large practical
experience." Worcester, The Philippines Past and Present, Vol. I,
p. 413. See further Gazetteer of the Philippine Islands, pp. 160,
161; Report of Commission, 1901, Vol. I, p. 52.




220


PHILIPPINE GOVERNMENT


of that body very much better acquainted with the
country, with the people, and with the local conditions,
and would help to educate the people in American methods, if the Commission       went to the capital of each
province and there passed the special act necessary to
create the provincial government and made the appointments at that time. Accordingly, the Commission visited
thirty-three provinces. The first province was Pampanga,
which it visited on the 13th of February, 1901, and then
followed the visits to the other provinces." 112   Arrange112 Report, Philippine Commission, 1901, Vol. I, pp. 10, 30, 31. See
further William H. Taft, Civil Government in the Philippines,
71 Outlook, May 31, 1902, p. 305, printed in The Philippines, pp.
42, 43; Inaugural Address of William H. Taft, as Civil Governor,
App. D. Report, Philippine Commission, 1901, Vol II, p. 282 and
in Taft, Present Day Problems, pp. 1-10; Williams, The Odyssey
of the Philippine Commission, Chs. IX-XJII. "Now, I am not sure
that I stated what the course of the Commission was in the holding of the meetings, and at the risk of reiteration I will say that
in advance of our coming the military district commander was
advised of the date when we should arrive, and was requested to
notify the principales, the cabezas de barangay, and municipal
councilors of every town in the province that we would meet them
in the capital. The principales are the prominent men, the men
of wealth and of education in the town. There is a distinct class
of them; they are recognized. The cabezas (le barangay are the
head men. The term means literally 'head of the boat crew,' meaning
the man in the head of the boat, and the cabeza de barangay was
the man who controlled the boat; but it came subsequently to mean
the man who was at the head of affairs in a place. There was no
special election by the people to select representatives to meet us,
but in the way described the educated leaders of the towns came
and discussed with us the needs of the province and towns and
the legislation to be adopted.
"When we reached the capital, we first had an interview with the
military commander, and asked him the condition of the district
with reference to pacification, and asked him also about the prominent natives and the persons whom it might be well to appoint
to offices, so far as he knew them. In some instances we found
that the military commander had been there so long and had




GOVERNMENTAL STEPS


22.


ments for the formation of local governments 113 were
made at the same time.       The two-fold distribution of
governmental powers under the Spanish rule was thus
maintained, but with a vast reduction of provincial divisions, and eventually, of municipalities.
Considering   the  chaotic conditions existing     in  the
Philippines, as a result of war, the friction due to insurrection, the disorganized machinery of government, and
taken so much interest in the people and their government and their
pacification and development that he could give us a great deal of
valuable information. On the other hand, there were some who
had been so short a time there, by reason of the change of posts,
that they did not know even as much as we did. However, we got
from the military officer what knowledge he had, and then we
proceeded to the town hall, or the largest room in the place, and
called the roll of the towns to see who were there to represent the
towns, and the names of those present at each meeting will be
found in the addendum to our report, volume 2.
"After calling the roll, the president of the Commission made a
statement of the general provincial law, and invited discussion by
the delegates present as to what the form of special law should be
which it was necessary to pass in order to make the general
provincial law  applicable.  That involved the settlement of the
question as to where the capital should be, what the salaries of the
provincial officers should be, and what additional special provisions
of law were necessary in view of the local conditions.  It also
involved frequently a general discussion as to the provisions of the
provincial law, and we always, I think without exception, crossexamined the speakers as to the conditions prevailing in that province, the condition of agriculture, and the wages, and the condition
of public buildings and public roads." Statement of William H.
Taft, before the Committee on Insular Affairs, 1902, pp. 25, 26.
See also pp. 7-26, 67 id.
113 "The policy adopted in most instances was to establish a
provincial government and appoint one of the provincial officers,
usually 'the governor, chairman of organization committees for the
several municipalities, so that the work might proceed as rapidly
as possible. In some few instances persons other than provincial
officers were selected on account of their special fitness for the
work." Report, Philippine Commission, 1901, Vol. I, pp. 30, 31.




222


PHILIPPINE GOVERNMENT


the grave problems to be solved, the splendid way in which
the Commission performed its task merits the approval
of all.1' Judge Williams, the Secretary of the Commission, writing contemporaneously of the first year's work
of the Commission, has said:
"The work has been hard and continuous now for
over a year, the Commission having taken active charge
September first, 1900. It is difficult to estimate what has
been done in that time and is now doing. In legislative
work alone some two hundred and forty-eight laws have
been passed, most of them having to be shaped to meet
new and untried conditions. A new government is being
created from the ground up, piece being added to piece
as the days and weeks go by. It is an interesting phenomenon, this thing of building a modern commonwealth
on a foundation of medievalism-the giving to this
country at one fell swoop all the innovations and discoveries which have marked centuries of Anglo-Saxon push
and energy. I doubt if in the world's history anything
similar has been attempted; that is, the transplanting so
rapidly of the ideas and improvements of one civilization
upon another. The whole fabric is being made over;
scarcely anything is left as it was." n5
Sixth Step-Change from presidential (military) to congressional (civil) government.
~ 73. The Spooner amendment, taking its name
from Senator John C. Spooner of Wisconsin, was an
amendment to the Act making appropriations for the
11 "The work of this memorable Commission will stand as one
of the most striking events in American history." Barrows, A
Decade of American Government in the Philippines, p. XII.
115 Williams, The Odyssey of the Philippine Commission, pp. 320,
321. See also Worcester, The Philippines Past and Present, Vol. I,
pp. 345, 346.




GOVERNMENTAL STEPS


223


Army, approved on March 2, 1901.      Following in part
the language of the Act of October 31, 1803, vesting the
government of Louisiana in President Jefferson, but
with a more arbitrary grant of power,11 Congress provided that "All military, civil, and    judicial powers
necessary to govern the Philippine Islands,
shall, until otherwise provided by Congress, be 'vested
il such person and persons and shall be exercised in such
manner as the President of the United States shall direct,
for the establishment of civil government and for maintaining and protecting the inhabitants of said Islands in
the free enjoyment of their liberty, property, and religion." 117  There  were   also  provisions  concerning,
franchises and the sale or lease of public land, designed
to safeguard Filipino interests.18  No change was thus
made in the organization of the Philippine Government,.
nor was any diminution of the powers of the President.
and his agents, except as to franchises, affected. The President still retained a very broad discretion, in connection
with the establishment and maintenance of government
in the Philippines.
What then was the purpose? Merely to prevent any
question as to the legality of prior action being raised, to
change the Philippine Government from a presidential
to a congressional basis, to separate military and civil
powers, and to have a civil and statutory foundation rather
than a military and implied one.11 The ground taken
"n John Holladay Latane, America as a World Power, 1897-1907,
p. 158.
11731 Stat. at L., 895.
118 See Congressional Record, Fifty-sixth Congress, Second Session, pp. 3262, 3385, 3493, 3522.
119 Willoughby, The American Constitutional System, p. 210;
Willoughby, Territories and Dependencies of the United States, pp.
181. 182; McKinley, Island Possessions of the United States, p.
250.




224


PHILIPPINE GOVERNMENT


by its advocates is indicated in the following extract from
a speech by Hon. Henry Cabot Lodge in the Senate:
"The President, under the military power, which still
controls and must for some time control the Islands,
could do all that this bill provides. But it is well that he
should have the direct authorization of Congress, and be
enabled to meet any emergency that may arise with the
sanction of the law-making power, until that power shall
decree otherwise. Above all, it is important that Congress should assert its authority; that we should not leave
the executive acting with the unlimited authority of the
war power to go alone after the conclusion of peace, but
that he should proceed under the authority of Congress
in whatever he does until Congress shall otherwise more
specifically provide. By this bill we follow the wellsettled American precedents of Jefferson and Monroe,
which were used still later in the case of Hawaii. To
leave the war power unrestrained after the end of the
war, as was done in the case of California and New
Mexico, is to abdicate our own authority. This bill is
the assertion of Congressional authority and of the legislative power of the government."
The President would thereafter act as President of the
United States and not as commander-in-chief of the
military forces.  The Philippine Government would
thereafter, in most respects, be a civil instead of a military
one. The power of Congress to authorize a temporary
government of this character has been frequently exercised and is not open to question.102
Seventh Step-Civil Government Established.
~ 74. Civil Governor inaugurated.-The order of
the President dated June 21, 1901, appointed William
120De Lima v. Bidwell (1901) 182 U. S. 1, 196, 45 L. Ed. 1041,
1056; Dorr v. U. S. (1904) 195 U. S. 138, 49 L. Ed. 128, 11 Phil.
706.




GOVERNMENTAL STEP.S


225


H. Taft, the President of the Commission, as the first
Civil Governor of the Philippine Islands. He was inaugurated into office with simple and impressive ceremonies on the fourth of July following."" In the exact
language of his inaugural address, "This ceremony marks
a new step toward civil government in the Philippine
Islands...    The transfer to the Commission of
the legislative power and certain executive functions in
civil affairs under the military government on September
first of last year, and now the transfer of civil executive
power in the pacified provinces to a Civil Governor, are
successive stages in a clearly formulated plan for making
the territory of these Islands ripe for permanent civil
government on a more or less popular basis." 122 In other
words, the Civil Governor exercised control over the
provinces where civil government had been established;
the Military Governor continued in charge of the remaining provinces, until transferred to civil authority.
~ 75. Civil organization completed.-The       President terminated the office of Military Governor and relieved the general commanding the Division of the
Philippines from the further performance of the duties
of the office by an order of July 3, 1902. Friction between
the two jurisdictions was thereby made impossible. The
Civil Governor, whose title has subsequently, by an Act
of Congress of February 6, 1905, been changed to Governor-General, became in all respects the Chief Executive
of the Philippine Islands.
Under the Chief Executive, the Insular organization
was completed by an Order of the President effective
September 1, 1901, making the four members of the
121 Williams, The Odyssey of the Philippine Commission, pp.
280-283.
122 See Inaugural Address of William H. Taft as Civil Governor,
Report, Philippine Commission, 1901, Vol. II, App. D., p. 281;
also appearing in Taft, Present Day Problems, pp. 1-10.
P. I. Govt.-15.




226


PHILIPPINE GOVERNMENT


Commission, heads of four Executive Departments.'23
Act 222 enacted a few days later segregated the Bureaus
into these departments or under the Civil Governor. One
of these Secretaries of Departments was designated
Vice-Governor on October 29, 1901-a position which
has remained.
The Philippine Commission, after the installation of
'a Civil Governor, was the sole legislative body for the
Islands until the inauguration of the Philippine Assembly
ton October 16, 1907, when it shared with the latter,
legislative jurisdiction over the so-called Christian provinces.  The Civil Governor continued as President of
the Commission. The order going into effect on September 1, 1901, the purport of which was known at the
time of the induction of the Civil Governor into office,
added three Filipino members without portfolios to the
Commission. Except for the addition of one more Filipino member on July 6, 1908, the organization of the
Commission remained unchanged.
The Philippine Bill, the Act of Congress of July 1,
1902, approved and ratified the previous action of the
President. It adopted the system which was in operation
with specification in some respects. Various other Acts
of Congress and Acts of the Philippine Legislature and
Commission have amplified the organic law.
By the time the first Civil Governor was ready to leave
the Islands in 1904 a stable and representative civil government was established.
Eighth Step '24-Extension of Popular Self-Govzernmealt.
~ 76. Filipino participation.-The Philippine Commission in its first formal report said: "The theory upon
12s See Report, Philippine Commission, 1901, Vol. I, pp. 16-18.
124 It can now be seen why the word "Step" was used. E. g.,
"Under him (Governor Taft) the Islanders are now taking the




GOVERNMENTAL STEPS


227


which the commission is proceeding is that the only possible method of instructing the Filipino people in methods
of free institutions and self-government is to make a
government partly of Americans and partly of Filipinos,
giving the Americans the ultimate control for some time
to come." 125   It evolved into a policy favoring a government of Filipinos assisted by Americans.       This seems to
have been the consistent policy of the United States.
Beginning with the lowest division, the Orders of the
Military Governor and the early Acts of the Commission
gave local autonomy. Not until 1916 (lid the city of
Manila get nearly absolute home rule with an elective
first steps along the hard path which ultimately leads to self-respect
and self-government." (President Roosevelt, The First Civil Governor, Outlook, 1901, printed in The Philippines, pp. 23, 24.) "We
are constantly increasing the measure of liberty accorded the
Islanders, and next spring, if conditions warrant, we shall take a
great stride forward in testing their capacity for self-government
by summoning the first Filipino legislative assembly." (President
Roosevelt, Message of 1906.)    "Gentlemen  of the Assembly:
President Roosevelt has sent me to convey to you and the Filipino
people his congratulations upon another step in the enlargement of
popular self-government in these Islands." (Address of Secretary of
War Taft at the Inauguration of the Philippine Assembly, printed in
Present Day Problems by Mr. Taft, p. 11.) "The national Philippine policy contemplates a gradual extension of popular control,
e.g., by steps." (Special Report of William H. Taft, Secretary of
War, to the President on the Philippines, p. 8.) "The President
outlined certain action which he, as the Executive, might take.
The Jones Bill now embodies, looking in the same direction, certain
forward steps which may only be taken by Congress. The steps
in advance granting power to the Filipino people embodied in the
bill are the following:"  (Statement of Secretary Garrison on the
Jones Bill, printed in "The Filipino People," July, 1914, p. 8.)
"Step by step we should extend and perfect the system of selfgovernment in the Islands, making test of them and modifying them
as experience discloses their success and their failure." (Messageof President Wilson, December 2, 1913.)
125 Report, Philippine Commission, 1901, Vol. I, p. 19.




228


PHILIPPINE GOVERNMENT


council and an appointive Mayor. The same result was
attained in the next higher unit, the provincial government, by the indirect election of governors, made more
nearly absolute by the direct election of governors and
third members in 1907, the election of a municipal president as a member of the provincial board in place of the
provincial treasurer in 1915, and now the election of
the provincial governors and the two "vocales" of the
Provincial Board. With the enactment of the organic
law for the Department of Mindanao and Sulu, Filipino
and Moro Self-government took a long step forward.
Of course, the foregoing statements do not take into
account certain appointive positions or the situation which
long existed in the Non-Christian Provinces and the
Moro Province.
In the central government, Filipinization began with
the appointment of Filipino judges in 1901, including the
Chief Justice and two Justices of the Supreme Court,
and of three Filipino members to the Commission in
September, 1901. Another member was added later,
but still leaving the ratio five to four. In 1913 a majority
of Filipinos in the Commission were appointed. Appointments of numerous Filipinos in the executive and judicial
branches have been made.
The most significant of all the moves looking to Filipino self-government was the institution in 1907 of the
Philippine Assembly, dividing legislative authority with
the Philippine Commission.""6 An Assembly had been
recommended by the two Philippine Commissions and by
126 See generally Report, Chief Bureau of Insular Affairs, Oct.
31, 1907; Report of the Philippine Commission, 1907, Part I; Commission Journal, 1907; Diario de Sesiones de Asamblea Filipina,
1907; Gregorio Nieva (Secretary, First Philippine Assembly, Member, Second Philippine Assembly), The Philippine Assembly, in
Builders of a Nation, pp. 73 et seq.; Kalaw, The Case for the
Filipinos, Ch. VII.




GOVERNMENTAL STEPS


229


Civil Governor Taft.1'2 The Philippine Bill (sections 6,
7) prescribed the following conditions to the calling of
an Assembly: 1. General and complete peace. 2. A
census. 3. An interval of two years after the census
with continuation of peaceful conditions. The Philippine Commission certified to the President on September
18, 1902, that the insurrection had ceased. The census
was completed and published on March 28, 1905.          Due
proclamation of this fact with announcement of future
action was made by the Chief Executive. The Philippine
Commission again certified to the President on March
28, 1907, that a condition of general and complete peace
had continued for two years following the publication
of the census.128 The President thereupon issued an
Executive Order calling a general election.129 The Philx "I can well remember when that section (sec. 7, Philippine
Bill) was drafted in the private cffice of Mr. Root in his house
in Washington.   Only he and I were present.    I urged the
wisdom of the concession and he yielded to my arguments and the
section as then drafted differed but little from the form it has
to-day. It was embodied in a bill presented to the House and
passed by the House, was considered by the Senate, was stricken
out in the Senate, and was only restored after a conference, the
Senators in the conference consenting to its insertion with great
reluctance. I had urged its adoption upon both committees, and,
as the then Governor of the Islands, had to assume a responsibility
as guarantor in respect to it which I have never sought to disavow. I
believe that it is a step and a logical step in the carrying out of the
policy announced by President McKinley and that it is not too radical
in the interest of the people of the Philippine Islands. Its effect
is to give to a representative body of the Filipinos a right to
initiate legislation, to modify, amend, shape or defeat legislation
proposed by the Commission." Address of Secretary of War Taft
at the Inauguration of the Philippine Assembly, printed in Present
Day Problems by Mr. Taft, pp. 35, 36.
128Appears in Report of the Philippine Commission, 1907, Part
I, pp. 47, 48, and in the Journal of the Commission, Vol. I, pp.
8, 9.
129 Appears in Vol. 6, Public Laws, pp. 524-529.




230


PHILIPPINE GOVERNMENT


ippine Commission enacted an Election Law (Act 1582)
and passed a suitable resolution directing the GovernorGeneral to announce the election for July 30-by a coincidence the same day of the month as that on which
the first legislative body in America, the House of
Burgesses, met in the year 1619. Delegates were elected
from the eighty districts into which the provinces entitled
to representation were divided-"the territory of said
Islands not inhabited by Moros or other non-Christians."
The result was the election of 32 Nacionalistas, 20 Independientes, 16 Progrcsistas, 7 Itmmcdiatistas, 4 Indcpcndicntes, and 1 Catolico.810 The first Philippine Assembly
convened on October 16, 1907, at the Grand Opera House
in the city of Manila.131  The appropriate provisions of
the laws, resolutions, and orders were duly read. The
Secretary of War, William H. Taft, delivered an address
and formally declared the Assembly open for the transaction of business. Oaths were administered to the members.  The rules of the Congress of the United States
were adopted.182 The Assembly organized by electing
Sergio Osmefia as the first Speaker.133
130 Special Report of William H. Taft, Secretary of War, to the
President on the Philippines, p. 45.
181 The Journal of the Commission gives an official account of
the inauguration of the First Philippine Assembly. The proclamation of the Governor-General naming the place of meeting appears
in Vol. 6, Public Laws, pp. 531, 532. See Lobingrer, The First
Filipino Assembly and its Work, 188 No. Am. Rev., Oct., 1908, p.
520.
182 "The members of the Assembly, in order to overcome the
natural difficulties attendant upon a new organization, were compelled to adopt the rules of some other legislative chamber, and
did so, not haphazard but deliberately, selecting the rules of the
House of Representatives of the United States. In doing so, they
took into account the fact that at that time the majority of the
Commission, the other legislative house, was composed of Americans,
who were naturally more accustomed to the methods of their
own Congress than to those of any other nation, and, chiefly, they




GOVERNMENTAL STEPS


231


Ninth Step-A,ztoitnomy.
~ 77. The Jones Bill.-The Philippine Autonomy
Act, quite generally spoken of as the Jones Bill, as passed
by Congress on August 29, 1916, provides for two most
important matters-present autonomy for the Filipino
people and future independence for them.     The first is
granted with an extension of jurisdiction to the Philippine Assembly (but hereafter to be known as "the House
of Representatives") and Legislature to cover all the Islands and with larger powers for the Legislature: with a
Senate elected by popular vote except two members, to
take the place of the appointive Commission; with an extension of the suffrage; with an increased Filipinization in
the executive departments possible through appointments
by the Governor-General and confirmation by a Filipino
Senate, and with practically all power in the hands of the
Filipinos, with the exception of a few officials appointed.
fronm Washington. In the language of the Act, "it is desirable to place in the hands of the people of the Philippines as large a control of their domestic affairs as can be
given them without, in the meantime, impairing the exercise of the rights of sovereignty by the people of the
United States."
In the final analysis, there is, generally, Filipino municipal government, Filipino provincial government, a
Filipino Legislature, Filipino  representation  in  Congress, and many more Filipinos than Americans in executook into account that, in the end, the American people and no
other would be the judge of the success or failure of said Assembly
which was being established as the touchstone of the capacity
of the Filipino people to make their own laws." Commissioner
Singson, The Filipino Legislator; His Difficulties and Successes,
I Philippine Law Journal, August, 1914, pp. 12, 13.
188 It is appropriate to note that in an address at San Miguel de
Mayumo, Bulacan, on May 7, 1910, Speaker Osmefia, speaking of
the Philippine Assembly, said: "The establishment of the Philippine




232


PIIILIPPINE GOVERNMENT


tive and judicial positions.14 But with an American
Governor-General responsible to an American President,
with an American majority on the Supreme Court and
appeal to the United States Supreme Court, and with
plenary power in Congress, ultimate control, significant
of American sovereignty, is still in the United States.
By comparison with the governments of Australia and
Canada, little difference is seen between the power which
exists in those self-governing commonwealths and what
is in force in the Philippines.184'
But more important still, the Philippine Autonomy Act
promises Philippine independence "as soon as a stable
government can be established." While there is no definition of "stable government," the law does intimate that
it is desirable that through this larger "use and exercise
of popular franchise and governmental powers" there may
be a "speedy accomplishment of such purpose."
Tenth and Last Step-Philippine Independelnce.
~ 78. The so-called Philippine problem is, therefore, solved for a time at least.   The peaceful methods
Assembly was not an isolated, much less casual, fact. Its casual
cause was the Act of Congress of July 1, 1902, but its true cause
is lost among the gloomy mists of that past over which we have
cast a retrospective glance.... The Philippine Assembly is
nothing but the child of the Philippine revolution." Quoted by
Nieva, The Philippine Assembly, in Builders of a Nation, pp. 77, 78.
Dr. James A. Robertson, The Evolution of Representation in
the Philippine Islands, 6 Journal of Race Development, Oct., 1915,
p. 155, traces popular government back to pre-Spanish periods.
184Writing as far back as 1902, Professor Jeremiah W. Jenks
said: "The United States has already given to the Filipinos a
larger portion of self-government than has ever been granted under
any circumstances to any other Oriental people.  The United
States has already granted more self-government than any other
nation has considered wise, or safe, or beneficial to the people
themselves." XXVI R. of R's, Nov., 1902, pp. 580, 588, "SelfGovernment in Oriental Dependencies."
18" Read Reinsch, Colonial Government, Ch. XII.




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counseled by Filipino leaders have succeeded where the
plottings of new uprisings would have failed.186 The
factors settling the question have been primarily American. Extermination was unthinkable. Assimilation was
impossible. Permanent retention was unwise. Ultimate
independence was the only alternative.186 The Philip135 See Mabini's Manifesto introductory to his work on La Revoluci6n Filipina, Le Roy's English translation, XI Am. His. Rev.
(1900) p. 860; Mabini's letter to San Miguel of March 27, 1903,
quoted in Devins, An Observer in the Philippines, pp. 221, 222.
136 The action of the United States reminds us of what an experienced Spanish diplomat, Sinabaldo de Mas, wrote in 1842:
"The laws of every state must have one object, and the wiser
and more perfect they are, the better they fulfill their end. To
discourse, then, on those laws which are advisable in Filipinas, one
must take note of the intentions that the government may have
in regard to the Islands. These intentions will probably be reduced to the following plans or principles.
"To conserve the colony forever, that is to say, without its separation being thought of.
"To consider indifferently its loss or its conservation, and the
fate of the Spaniards living in the colony.
"To resolve upon emancipation, and prepare the colony for giving it freedom. (A note by Mas at this point discusses the other
admissible plan, 'namely, to cede the country to some foreign
power.') 
"If I had to choose I would vote for the last.
"In conclusion, if we are conserving the Islands for love of the
Islanders, we are losing our time, and merit, for gratitude is sometimes met with in persons, but never can it be hoped for from
peoples; and indeed through our love, why do we fall into an
anomaly, such as combining our claim for liberty for ourselves,
and our wish at the same time to impose our law on remote
peoples?  Why do we deny to others the benefit which we desire
for our fatherland?  By these principles of universal morality
and justice, and because I am persuaded that in the midst of
the political circumstances in which Espafia is at present, the
condition of that colony will be neglected; that none of the
measures which I propose for its conservation (this is my conviction) will be adopted; and that it will emancipate itself violently
with the loss of considerable property and many lives of Euro



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PIIILIPPINE GOVERNMIENT


pines will undoubtedly neither be a neutralized state nor
an American protectorate.187     They will not be neutralized, because among the oldest traditions of the United
States is an aversion to political alliances with foreign
powers.   They will not be an American protectorate, bepean Spaniards and Filipinos. I think that it would be infinitely
more easy, more useful, and more glorious for us to acquire the
glory of the work by being the first to show generosity. Hence,
the foreign authors who have unjustly printed so many calumnies
against our colonial governments, authors belonging to nations who
never satisfy their hunger for colonies, would have to say at least
this once: 'The Spaniards crossing new and remote seas, extended
the domain of geography by discovering the Filipinas Islands.
They found anarchy and despotism there, and established order
and justice. They encountered slavery and destroyed it, and imposed political equality. They ruled their inhabitants with laws,
and just laws. They christianized them, civilized them, defended
them from the Chinese, from Moro pirates, and from European
aggressors; they spent much gold on them, and then gave them
liberty.'" Internal Political Conditions of the Philippines, 1842,
Vol. LII Blair and Robertson, The Philippine Islands, pp. 30, 31, 87,
89.
187 Neutralized States and Neutralization, generally described in
I Moore, International Law Digest, sec. 12; C. F. Wicker, Neutralization; C. F. Wicker, The United States and Neutralization,
106 Atlantic Monthly, Sept., 1910, p. 304; C. F. Wicker, The Question of the Philippine Neutrality, 110 Atlantic Monthly, November,
1912, p. 648; Javier Gonzalez, The Neutralization of the Philippines, 5 Cultura Filipina, May, 1915, p. 79; Garner, Introduction to
Political Science, pp. 163, 164. For the literature relating to neutralized states see Despagnet, "Cours de Droit international public,'
pp. 145-162; Oppenheim, Vol. I, pp. 140-146; Holland, "Studies in
International Law," pp. 270-272; Rivier, "Principes," Vol. I, sec.
7; Piccioni, "Essai sur la Neutralit6 perpetuelle"; Regnalt, "Des
Effets de la Neutralit6 perpetuelle"; Tswettcoff, "De la Situation
juridique des Etats neutralists."  Protectorates described in I
Moore, International Law Digest, sec. 14; C. F. Randolph, Law
and Policy of Annexation, pp. 150, 156, 209-211, etc.; Garner, Introduction to Political Science, pp. 161, 162; Hart, Actual Government, pp. 373-375; Ireland, The Far Eastern Tropics, p. 255. "If
the United States is to be the guardian of the Philippines, it is




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235


cause the gain is not considered proximate to the danger.
The Philippines will, when conditions are met, be unqualifiedly independent with no restrictions whatsoever.
Of the Americans interested, those will be pleased who
believe that above all the United States should keep faith
and fulfill promises predicated on platform pledges.188
Those will be pleased who feel that the Philippines are
an expense, a burden, and a danger.s39        Those will be
pleased who regard the national policy of the United
States as against the possession of outlying unassimilated
bound to intervene in case of disorders there, and to take measures
to prevent their recurrence. Moreover, there is no panacea in the
word 'protectorate,' for a dependency may have less liberty than a
colony: the 'East Africa Protectorate' is a benevolent despotism;
Cape Colony enjoys a large measure of self-government. In the
end, the power responsible for the maintenance of order must (ectermine the extent of the local privileges. To be sure, some declare
that the Filipinos are capable of orderly self-government, and there
fore will make no difficulties for the protecting power; but the
American people, with the example of Cuba before them, are likely
to be slow in accepting this assurance." Coolidge, The United States
as a World Power, p. 168.
138As former President Roosevelt in XXXII Everybody's Magazine, January, 1915, p. 120, and W. Morgan Shuster, 87 Century
Magazine, February, 1914, p. 422.
139 Arguments relative to the abandonment of the Philippines are
not new as is shown by an account by L. de Argensola, A New
Collection of Voyages and Travels into Several Parts of the
World (compiled by John Stevens, London, 1711). We read that
at the end of the sixteenth century,
"The Council of State, observing that the Philippine Islands
were rather an Expence than an Advantage to the Crown, being
many, and hard to be maintained, had proposed to King Philip to
quit them and withdraw the Court of Justice and Garrison that
defend them. They added the Example of the Cllineses who abandoned them tho' they are such near neighbours, and can relieve
them with much Ease, as if they were joyning to their Continent.
That as Spain governs them, the loss they occasion is considerable,
without any Hopes that it can ever be alter'd for the better; a
vast Quantity of Silver being sent thither from New Spain, both




236


PHILIPPINE GOVERNMENT


territories.1" Those will be pleased who want a literal
compliance with the tenet of the Declaration of Independence relative to the consent of the governed. To
them the words of Abraham Lincoln are priceless: "No
man is good enough to govern another man without that
for the usual Expenses, and to buy Commodities; that so all that
Treasure is convey'd by the Hands of the Chineses into the Heart of
those Dominions (China). They alleged that a Monarchy dispers'd and divided by so many seas and different climates could
scarce be united; nor could humane Wisdom, by settled Correspondence, tye together Provinces so far remov'd from one another
by Nature. That these Arguments are not the Offspring of Wit,
but of Experience, and Truths obvious to the Senses. That all
such as might be urg'd against them were only grounded upon
Honour, and full of a generous Sound, but difficult in the Execution; and therefore the best Expedient was for the King to
strengthen himself in Europe, where his forces can be ready to meet
all Dangers without being expos'd to the Hazards of the Sea and
the Dominions of Others. Each of these Arguments was so fully
represented by the Officers of the Revenue, that the Proposal (to
abandon the Philippines) was thought worthy to be debated and
consider'd." Harper's History of the War in the Philippines, p.
7. "Nothing should ever be accepted which would require a navy
to defend it." Mr. Jefferson to President Madison, Apr. 27, 1809,
5 Jeff. Works, 443, I Moore, International Law Digest, p. 429.
A statement prepared by the Bureau of Insular Affairs shows
that for the fiscal years 1903-1914, inclusive, the Philippines had'
cost the United States $119,010,677.14 (P238,021,354.28) as follows:
Army.............................$113,711,371.82
Coast and Geodetic Survey........  1,947,379.82
Congressional Relief Fund.........  3,000,000.00
Philippine Census..................  351,925.50
Add some other expenses not there mentioned and include the
years 1898-1902, 1915, 1916 (not extraordinary war expenses) and
the total would reach about $200,000,000 (P400,000,000). See Hearings Before the Committee on the Philippines U. S. Senate, 63d
Congress, 3d Session, p. 666.
140 "The policy of this government, as declared on many occasions in the past, has tended toward avoidance of possessions disconnected from  the main continent.  Had the tendency of the
United States been to extend territorial dominion beyond interven



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237


other's consent.   When the white man governs himself,
that is self-government; but when he governs himself
and also governs another man, that is more than self-government-that is despotism." ml Every man, they argue,
is entitled by natural law to be governed by the voice of
ing seas, opportunities have not been wanting to effect such a purpose, whether on the coast of Africa, in the West Indies, or in the
South Pacific." Mr. Frelinghuysen, Sec. of State, to Mr. Langston,
June 20, 1882, Ms. Inst. Hayti, II, 339, referring to a proposal of
President Salomon to cede to the United States the Island of La
Fortue. "The policy of the United States, declared and pursued for
more than a century, discountenances and in practice forbids distant
colonial acquisitions." Mr. Bayard, Sec. of State, to Mr. Pendleton,
Sept. 7, 1885, MS. Inst. Germ. XVII, 547. I Moore, International
Law Digest, sec. 100, at pp. 432, 433.
l41 But all will not agree; for example Senator John C. Spooner in
the United States Senate, May 31, 1902, said: "The Declaration
of Independence and its words 'the consent of the governed' has
played from the beginning a conspicuous part in the debate upon
this subject. I confess I have not been able to see its applicability. Perhaps that is partly due to our differences as to the
facts. To me, it is clear that a condition precedent to the applicability of the doctrine is the existence of a people of sufficient
intelligence, cohesion, and power of organization to alter or to
abolish a form of government which to them had become destructive'
of the ends of government and to institute a new government and
to maintain it.
"If the 10,000,000 inhabitants of the Philippines had, independent
of our presence and operations there as an enemy of Spain, organized an insurrection, declared their independence and won it,
and established a government to suit themselves it would have been
their right to maintain. it as they saw fit, without dictation from
any other government or people. But that is not this case. From
my point of view they had done none of these things in any
substantial sense, and we acquired from Spain by the treaty the
title to the Archipelago, the sovereignty over it and the right
to govern it. That in such case adherence to the Declaration of
Independence, if it be applicable at,all, requires, regardless of the
fitness of the people to govern, that they shall be turned loose
to form a government of their own I deny.
"The doctrine of the consent of the governed, as used here as an




238


PHILIPPINE GOVERNMENT


his own country. Those will be pleased who assert that
"Any decent kind of government of Filipinos by Filipinos is better than the best possible government of
Filipinos by Americans." 4   And those will be pleased
who submit facts and arguments to prove that the Filipinos have more right to an independent government than
many European and American countries.
Of the Filipinos, those will be gratified who aspire to
immediate and complete independence. The desire for a
national emblem is natural. The love of native land-nlot
attempted inculcation of Philippinized-American patriotism for America, but Philippine patriotism for the Philippines-should be respected.   All peoples wish to manage their affairs in their own way. A government from
without and above no matter how beneficent and philanthropic, shocking, as it must unconsciously do, native
customs and ideals, imposing a foreign idiom, and asserting a superiority, will always be unpopular. In the history of the United States the territory of Louisiana under
a mild form   of government yet asked: "Without any
vote in the election of our Legislature, without any check
upon our Executive, without any one incident of selfgovernment, what valuable 'privilege' of citizenship is allowed us, what 'right' do we enjoy, of what 'immunity'
can we boast, except, indeed, the degrading exemption
from  the cares of legislation, and the burden of public
argument against the government for what it has done and proposes
to do in the Philippines, has been violated by this nation from the
beginning.
"We purchased Louisiana, a vast territory. Did we ask the consent of the people? Did we not put upon that people, many of
them intelligent people, too, a government against which they protested?"
42 Philippine Affairs, A Retrospect and Outlook, An Address by
Jacob Gould Schurman, President of the First Philippine Commission, before the members of Cornell University, p. 109.




GOVERNMENTAL STEPS


239


affairs?" '14  A quotation from Daniel Webster oft used
by the anti-imperialists will be recalled: "No matter how
easy is the yoke of a foreign power, no matter how lightly
it sits upon the shoulders, if it is not imposed by the voice
of its own nation and of its own people, lie cannot, he
must not, and he will not be happy under its burden."
Separation has been hastened much more rapidly than
the conservatives prefer. Those Americans will disagree,
who conscientiously and firmly hold that the Filipinos will
not be ready for self-government in any period short of
two generations,44 who think the United States is doing
an injustice to the people of the Islands, or who cherish
the hope of a great imperial America, with outposts in
the  Orient.   Those   Filipinos will disagree   who   say
privately that desiring independence, they also desire a
permanent independence with protection.145     Those foreign critics and a few     American imitators, who are
steeped in an unswerving faith in the superiority of the
white man and the righteousness of a strong colonial
policy, and who have predicted a failure for the American quixotic policy, will again delight in misanthropic
prophecies.146 Such action will be criticized by those who
see nothing for certain races but dependence on a higher
143 Annals of Congress, 8 Cong. 2d Sess. App. 1597-1608, found
in Hart, American History Told by Contemporaries, Vol. III, pp.
379, 380. See also Bocobo, Civil Law Under the American Flag, I
Philippine Law Journal, January, 1915, p. 288.
144 William H. Taft, Civil Government in the Philippines, 71 Outlook, May 31, 1902, p. 305, printed in "The Philippines," p. 105.
Same statement made on numerous occasions.   See address of
Major H. Shelton, Assistant to Chief, Bureau of Insular Affairs,
at Lake Mohonk Conference, October, 1912, for a fair analysis of
the Philippine Problem from this standpoint.
145 See Juan Sumulong, The Philippine Problem from the Filipino Standpoint, 178 No. Am. Rev. (1904), p. 867.
146 See Ireland, The Far Eastern Tropics.




240


PHILIPPINE GOVERNMENT


race-usually the Aryan.17 The attachment of unpolitical states to those possessing political organization is
justified as in the interest of the world's civilization.14
147 "The English Empire covers one-fifth of the globe; the Dutch
Empire is as big as Europe, and the total of all the colonies of
Northern Europe covers two-fifths of the surface of the earth, and
perhaps over half. If we include Russia, it is more than threefifths. Of the 1,500,000,000 of people now living, twenty-six and
four-tenths per cent. are ruled by Great Britain; nine per cent. by
Russia; six and three-tenths per cent. by France; six per cent. by
America; four per cent. by Germany, a total of 52.6 per cent. If
we include the nations under the guidance of Holland, Belgium,
Scandinavia and Denmark, and those protected by the United
States, it is probable that six or seven-tenths of the human race
are guided by the Aryan brains of Europe and America, and more
than half, probably seven-tenths of these, are controlled by the
English. The Northwestern corner of Europe is already the cranium
of the future world nation, and to a certain extent London holds the
main ganglion-the will-for little can be done in international affairs until it is consulted." Woodruff, Expansion of Races, p. 449.
See also Colquhoun, Control of the Pacific, pp. 253, quoted with
other authorities in Woodruff, Expansion of Races, p. 306. Compare with Jean Finot, Race Prejudice, Eng. translation.
148 "The political subjection or attachment of the unpolitical nations to those possessing political endowment appears, if we may
judge from history, to be as truly a part of the course of the world's
civilization as is the national organization of states. I do not think
that Asia and Africa can ever receive political organization in any
other way....
"We must conclude, from the manifest mission of the Teutonic
nations, that interference in the affairs of populations not wholly
barbaric, which have made some progress in state organization, but
which manifest incapacity to solve the problem of political civilization with any degree of completeness, is a justifiable policy. No
one can question that it is in the interest of the world's civilization that law and order and the true liberty consistent therewith
shall reign everywhere upon the globe. A permanent inability on
the part of any state or semi-state to secure this status is a threat
to civilization everywhere. Both for the sake of the half-barbarous
state and in the interest of the rest of the world, a state or states,
endowed with the capacity for political organization, may righteously




GOVERNMENTAL STEPS


241


Some will again dissent who declare that human progress
in the tropics is impossible.14
Point of view predetermines solution of the problem.
Spontaneous, long continued, and ringing gratitude on
the part of the Filipino people for the action of the
United States need not be expected.10 Nations, like individuals, have short memories. The neglect of the Cubans
for the relics of the Battleship Maine is a sorry example.
Yet the people of the Islands may be expected
to make such outward demonstration and to concede such privileges as would another people under   similar   conditions.    Commissioner     Quezon    in
a public address before the Congress of the United
States has said that: "The Philippine Assembly, the body
vested with full authority to speak for the people of the
Islands, has on every occasion when a great concession
has been made by this government to the Filipino people
invariably spoken words of deep-felt gratitude." 16 His
assume sovereignty over, and undertake to create state order for.
such a politically incompetent population. The civilized states should
not, of course, act with undue haste in seizing power, and they should
never exercise the power, once assumed, for any other purpose
than that for which the assumption may be righteously made, viz:
for the civilization of the subjected population; but they are under
no obligation to await invitation from those claiming power and
government in the inefficient organization, nor from those subject to
the same." Burgess, Political Science and Constitutional Law, Vol.
I, pp. 4, 47. Read Walter Lippmann, The Stakes of Diplomacy.
149 See generally Ellsworth Huntington, Civilization and Climate.
160 Read Philippine Affairs, A Retrospect and Outlook, An Address by Jacob Gould Schurman, President of the First Philippine
Commission, before the members of Cornell University, pp. 75, 76;
Foreman, The Philippine Islands, 3d Ed., p. 9.
151Congressional Record, Vol. 51, No. 268, p. 18773, Nov. 2,
1914. Read the concluding paragraph to Kalaw, The Case for the
Filipinos, pp. 244, 245, where the "boundless gratitude to America''
for independence is dwelt upon.
P. I. Govt.-16.




242


PHILIPPINE GOVERNMENT


facts are true, and there is no reason to question the sincerity of the Philippine Assembly.
The government which the Filipinos will deem best
suited for the Islands will not be of the kind which Americans would establish. That is incontestable. Nevertheless, if the Filipinos are wise, they will retain the basic
principles of Anglo-Saxon institutions which are as universal in their application to democracies as are the laws
of nature. Neither can a perfect government be expected.
Plato's ideal republic is no more attainable in the Philippines than it is in the United States.
The Filipinos submit that if left to themselves, they
could maintain stable, internal administration.  To this
end, they point to capacity shown during American control, to their efforts to maintain public order, to their
love for and progress in public instruction, to their exercise  of the  suffrage, to  their administration   of
provincial and municipal governments, to an impartial
Filipino judiciary, and to the record of the Phililpine
Assembly and of a Filipinized Philippine Commission.
They deny that independence will bring disorder and
chaos, that the people are ignorant, that caciqulisN  will
dominate, that relations between Christian and nonChristian will be strained, that the Moro problem is any
more difficult for them than the Indian or Negro problems have been for the United States or the Ainus problenl
for Japan, that they have not had political experience.
and that there is a lack of a common language.    They
contend that they constitute a nation.    The physical
characteristics are much the same; a common religion
unites; aspirations are unified; one in race, in country, in
religion, in aspirations.152
152 See carefully prepared letter of the Nacionalista Party, Sept.
1, 1910, App. C, Special Report of Secretary of War Dickinson.
"Because the Filipinos speak various dialects, some people believe
they do not constitute a nation. But one who makes a slight study




GOVERNMENTAL STEPS


243


Referring back to our definition of a nation, much can
be said in substantiation of the claim that the inhabitants
of the Philippines are a nation. Is there geographic and
ethnic unity? Yes. Geographically and ethnologically
the Philippines belong to the Malay Archipelago      and are
of one family.'53 So one definition is answered. Do the
of these dialects promptly sees they are no more than variations
of a single language, which has become modified for reasons that
only a prolonged study of pre-Spanish Philippine history can explain.  The slight mutual intercourse among the early Filipinos,
living in islands and regions isolated from each other, gave rise
to the differentiations that produced the dialects. But the physical
characteristics that mark the Tagalogs, Visayans, Ilocanos, Bicols,
etc., show at a glance their close relationship.
"An appeal to history makes the point still clearer. The unifying effect of Christian civilization, the acts in which the Filipino
people united in order vigorously to oppose the all-embracing influence of the Friars under the Spanish r6gime, and, later, the
very war that was waged by all Filipinos against Spain and the
United States for the sake of independence, are practical demonstrations of a real and definite unity." Juan Sumulong, The Philippine Problem  from the Filipino Standpoint, 178 No. Am. Rev.
(1904) p. 861.  A resolution of the Philippine Assembly of May,
1910, begins:
"Whereas the Philippine Assembly, as the legitimate representatives of the Filipino people, must be the faithful echo of what the
latter thinks and feels: and
"Whereas the Philippine nation, being positively convinced that
it possesses the actual capacity for self-government as a civilized
nation, aspires ardently to be independent, and, trusting in the justice
and in the tradition of the nation that now directs the fate and
destiny of the Filipinos, anxiously hopes to obtain it as soon as
practicable-immediately, if that be possible-from the Congress of
the United States of America."
158 If the term "race" be taken to apply to any composite body of
individuals who are becoming or may become a distinct type by
natural and artificial processes, then in the opinion of Professor
Bean a Filipino race at present exists. Bean, Racial Anatomy of the
Philippine Islanders, 1910, p. 216. The diverse groups in the Philippines could be assimilated into a homogeneous people. This can
be accomplished by the volition of the different sections; by the




244


PHILIPPINE GOVERNMENT


component atoms believe the Philippines to be a nation
which they revere as such? Yes. They speak of each
other and recognize each other as Filipinos.16 So another
definition is answered. Do the Philippines possess a common language, laws, religion, traditions, interests,
customs, and aspirations? No one could categorically
answer. And in extenuation may it be said that many
so-called nations would also fail to meet these ideal tests.
One can never say exactly at what point individuals acquire the rights of a people. Of some of the elements
of the definition it can, however, be said-Common laws
exist. Traditions of a remote past can be found.'56 Tribal
lines are not drawn. Language is necessarily no bar.
Act 116 of the Constitution of the Swiss Confederation
of 1874 provides that: "The three principal languages
spoken in Switzerland, German, French, and Italian,
shall be national languages of the Confederation." Differences in language in racial groups are not as great as
progressive expansion of a common language (English); by a
common education which "will tend to produce a Filipino people
which knows how to govern itself and how to obey its own laws";
by religion; by common attainable aspirations; by economic independence for the lower classes; all assisted by the physical and
human environment of the Islands and their people. See Albert
E. Jenks, Assimilation in the Philippines, American Journal of
Sociology, May, 1914, pp. 773-791. "The Filipinos are not a nation,
but a variegated assemblage of different tribes and peoples." Report of the First Philippine Commission, Vol. I, p. 182.
14 See Inaugural Address of Ignacio Villamor as President of
the University of the Philippines, Aug. 12, 1915.
15 But Bowring, A Visit to the Philippines, pp. 314, 315, says:
"They have, indeed, no traditions of former independence-no
descendants of famous ancient chiefs or princes, to whom they
look with affection, hope or reverence. There are no fragments
left of hierarchies overthrown. No Montezumas, no Colocolos, are
named in their songs, or perpetuated in their memories. There are
no ruins of great cities or temples; in a word, no records of the
remote past"




GOVERNMENTAL STEPS


245


in China, Austria, or the cantons of Switzerland.'6 And
as the most important element uniting the Filipinos in
nationality, is the memory of a common past and the
hope of a common future.'67    Nationality, as in the early
history of the United States, and as in the nineteenth
and twentieth centuries of Philippine history, will be
strengthened by the expansion of a common language,
by mutual intercourse, by education, by attainment of the
strength of individuality, and by struggles and
hardships.'58
The Filipinos have many national assets.'9 They possessed a native culture before the coning of the Spaniards. The Latin influence of Spain and Europe changed
and improved their civilization. The Anglo-Saxon influence of the United States has again changed and improved their possibilities. It is said that they are centuries
ahead of their Malay cousins.1~    Admiral Dewey's telegram that the people of the Philippines "are far superior
in their intelligence and more capable of self-government
than the natives of Cuba, and I am familiar with both
races" will be recalled.161 Democratic ideas among the
156 See Willis, Our Philippine Problem, pp. 446, 447.
157 See Ignacio Villamor, Inaugural Address as President of the
University of the Philippines, Aug. 12, 1915.
158 See Bancroft's History of the Constitution of the United
States, Vol. II, pp. 323, 324.
169 See Willis, Our Philippine Problem, p. 443, quoting from Dr.
David J. Doherty.
160 See Stuntz, The Philippines and the Far East, pp. 58, 59; and
sec. 49 supra.
161 "In the beginning many dictums, which now seen in perspective
seem rather ridiculous, of alleged Filipino incapacity were advanced,
and for a while adopted in administrative organization. It was
held that a Filipino could not, for instance, drive a team of American horses or mules; and that a native could not be entrusted with
the duties of ordinary clerkships." Millard, America and the Far
Eastern Question, p. 408




246


PHILIPPINE GOVERNMENT


Filipinos are not new.162  Because a people differs from
Americans is no proof that they are inferior in civilization. Because a Filipino is of another color, because he
may dress in a curious but comfortable style, because he
speaks a strange tongue, and because he may live in a
thatched house, is no criterion any more than it is of the
Japanese who live somewhat the same. The Filipino
people respect their government and have an intense love
for their family and their community. The state of the
Filipino woman is superior to that of other Oriental
countries.  The people are not illiterate.  Statistics show
that the percentage of literacy is higher than in some
countries in Central and     South America and in the
Balkans.   Le Roy, a fair critic, estimated more than ten
years ago that literacy ranged from 50% to over 70%o.13
The land area is sufficient-two-thirds that of Japan
162See Mariano Ponce, Historical Study of the Philippines, in
Builders of a Nation, pp. 36 et seq.
163 Le Roy, Philippine Life in Town and Country, p. 234. "More
than 80 per cent of the Philippine people are illiterate."  Special
Report of Wm. H. Taft, Secretary of War, to the President, on the
Philippines, p. 11. "In view of what has been said, Mr. Chairman,
I think I can safely predict, without being over optimistic, that
if a new census were to be taken to-day among the Christian population the degree of illiteracy will be found.to have fallen to 15
or 20 per cent; or, in other words, the 85 per cent mentioned by the
gentleman from Ohio will not represent those who can neither
read nor write, but those who can both read and write." Speech
of Hon. Manuel L. Quezon in the House of Representatives, The
Philippine Bill, printed in Vol. 51, No. 268, p. 18772, November
2, 1914, Sixty-Third Congress, Second Session, Congressional Record. "The Filipino people has received under Spain not an Oriental
but a European education, which has brought into being a body of
men capable of directing the government of the country. It has
often been said that the great majority of the population lack not
only political experience, but even the most elementary education.
But this last is not a correct statement, for, apart from Spanish,
the Filipinos who cannot at least read and write their own dialect
(A similar condition is to be noted in a great part of the Japanese




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247


proper, double the New    England States and larger than
the British Isles. Good harbors are plentiful. Potential
commercial wealth is inestimable. Conceding that climate
is a permanent factor, it is only relatively so. A population increasing at a rate equal to that of any people
may be confidently expected.     The history of the Philippines reveals this. The density of population is at present
small, about 70 persons to the square mile.        But Dr.
Barrows estimates that by 1950, the population will be
over fifteen million, and in a few generations will equal
the Japanese in numbers and national resources.1"       The
people tlhemselves offer opportunities for development.165
Authors of varying dates agree in ascribing to the Filipinos many excellent personal characteristics.166  There is
nothing to indicate that they cannot attain to an advanced
standard.   Authors of many dates have also vied with
nation. Yet, nevertheless, no one would have the right to say that
the Japanese who know only their own dialect, are wholly ignorant.)
are few and rare indeed." Juan Sumulong, The Philippine Problem from a Filipino Standpoint, 178 No. Am. Rev. (1904), p. 862.
See the last almanacs for a table showing the literacy of different
countries-illiteracy in Philippines given at 55.5 per cent; Spain
58.7; Greece 57.2; Argentina 54.4, etc.
164 Address by Dr. David P. Barrows before the Lake Mohonk
Conference, Oct. 20, 1910, p. 92; quotation from same author found
in Forbes-Lindsay, America's Insular Possessions, Vol. 1II, p. 116.
See sec. 49, note 117, supra, for a table showing the increase of population during the Spanish regime.
165 "Contrast the Filipinos with other Malays and the Orient:l
peoples, and I ask you to name a people offering more opportunities for development along the lines which American ideals
require than the people of these Islands." Address by Hon. William
H. Taft, Civil Governor of the Philippine Islands, delivered before
the Union Reading College, printed in Vol. I Official Gazette (Supplement), December 23, 1903, p. 6.
166 See remarks on the Philippine Islands, 1819-1822, by an Englishman, Vol. LI, Blair and Robertson, The Philippine Islands, pp.
100, 101; Palgrave, Ulysses or Scenes and Studies in Many Lands,
p. 141; Coolidge, The United States as a World Power, pp. 164-166;




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PHILIPPINE GOVERNMENT


each other in word pictures portraying the beauties of
the Philippines. Legaspi, the first Governor-General, said
in 1569: "The land is fertile...  This country is
salubrious and has a good climate.       It..     has
good ports." 167   The much travelled A. Henry Savage
Landor in beginning his work "The Gems of the East"
(p. 1) speaks of the Philippines as "a most enchanting
country, a land full of weird surprises, of magnificent
scenery and ideal vegetation, with an assortment of delightful people." In conclusion he states (p. 546) "I may
say that in some eighteen years' travelling I have never
enjoyed and been interested more than         I was in the
journey (over 16,000 miles) over these most enchanting
Islands-really and truly, to any one with an unbiased
mind, 'the gems of the East.' " 168 If there be pessimists,
Wright, A Handbook of the Philippines, Introduction, pp. xiii,
xiv; Archbishop Harty, 62 Ind., May 30, 1907, p. 1246; Special Report of Wm. H. Taft, Secretary of War, to the President on the
Philippines, p. 24; Worcester, The Philippines Past and Present,
Vol. II, pp. 933, 934.
167 Relation of the Filipinas Islands, Vol. III, Blair and Robertson, The Philippine Islands, p. 54.
168 "Of the numerous groupes of islands which constitute the maritime division of Asia, the Philippines, in situation, riches, fertility,
and salubrity, are equal or superior to any. Nature has here revelled in all that poets or painters have thought or dreamt of the
unbounded luxuriance of Asiatic scenery.  The lofty chains of
mountains-the rich and extensive slopes which form their bases
-the ever-varying change of forest and savannah-of rivers and
lakes-the yet blazing volcanoes in the midst of forests, coeval perhaps with their first eruption-all stamp her work with the mighty
emblems of her creative and destroying powers." Remarks on the
Philippine Islands, 1819 to 1822, by an Englishman, Vol. LI, Blair
and Robertson, The Philippine Islands, p. 74. "One cannot but be
struck, in reference to the geographical character of these Islands,
with the awful serenity and magnificent beauty of their primeval
forests, so seldom penetrated, and in their recesses hitherto inaccessible to the foot of man. There is nothing to disturb their
silence but the hum of insects, the song of birds, the noises of wild




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249


there are likewise optimists who foretell for Manila that
it will be the political and commercial metropolis of the
animals, the rustling of the leaves, or the fall of decayed branches.
It seems as if vegetation revelled in undisturbed and uncontrolled
luxuriance.  Creeping plants wander from  tree to tree; lovely
orchids hang themselves from trunks and boughs. One asks, why
is so much sweetness, so much glory, wasted? But is it wasted?
To the Creator the contemplation of his works, even where unmarked by human eye, must be complacent; and these half-concealed, half-developed treasures, are but reserved storehouses for
man to explore; they will furnish supplies to awaken the curiosity
and gratify the inquiry of successive ages. Rove where he mayexplore as he will-tax his intellect with research, his imagination
with inventions-there is, there will be, an infinite field around and
above him, inexhaustible through countless generations..
They are covered with beautiful and spontaneous vegetable riches
above, and bear countless treasures of mineral wealth below; their
powers of production are boundless; they have the varieties of climate which mountains, valleys and plains afford-rains to watersuns to ripen-rivers to conduct-harbours for shipment-every
recommendation to attract adventure and to reward industry; a
population of only five or six millions, when ten times that number
might be supplied to satiety, and enabled to provide for millions
upon millions more out of the superfluities of their means." Bowring, A Visit to the Philippine Islands, pp. 85, 86, 106. "The
natural riches of the country are incalculable. There are immense
tracts of the most feracious soil; brooks, streams, rivers, lakes, on
all sides; mountains of minerals, metals, marbles in vast variety;
forest whose woods are adapted to all the ordinary purposes of
life; gums, roots, medicinals, dyes, fruits, in great variety.
"With a few legislative reforms," he concludes, "with improved
instruction of the clergy, the Islands would become a paradise of
inexhaustible riches, and of a well-being approachable in no other
portion of the globe." M. Marcaida, a merchant of Manila, quoted
in Bowring, A Visit to the Philippine Islands, pp. 318, 319. Mr.
Gifford Palgrave, at one time Her Britannic Majesty's Consul at
Manila, says: "Not the.Egean, not the West Indian, not the
Samoan, not any other of the fair island clusters by which our
terraqueous planet half atones for her dreary expanses of grey ocean
and monotonous desert elsewhere, can rival in manifold beauties
of earth, sea, sky, the Philippine Archipelago; nor in all that Archipelago, lovely as it is through its entire extent, can any island vie




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Orient.169  National independence should tend to stimulate a development of all these latent potentialities.
Let him who scoffs at the impossibility of Philippine
progress without even awaiting events make a comparison
between the United States when she adopted her Constitution and the Philippines if she be permitted to ratify
hers.  In 1790 the number of inhabitants in the United
States was under four million. The Philippines have
double this.   Of the American inhabitants, nearly onefifth were negroes.    The Philippines have nowhere near
this proportion of non-Christians. Of the American inhabitants, the ancestors of eight-tenths were probably
with the glories of Luzon." Ulysses or Scenes and Studies in many
Lands, p. 139. Monsieur Dumont D'Urville says: "The Philippines,
and above all Luzon, have nothing in this world to equal them in
climate, beauty of landscape, and fertility of soil. Luzon is the
finest diamond that the Spanish adventurers have ever found."
"I (Frederick H. Sawyer) know of no land more beautiful than
Luzon, certainly of none possessing more varied features or offering more striking contrasts." Sawyer, The Inhabitants of the Philippines, pp. 2, 3. "The Philippines have the best tropical climate
in the world; soil of unsurpassed richness; great forest wealth;
promising mines; and a constantly growing population willing to
work for a reasonable wage." Worcester, The Philippines Past
and Present, Vol. II, pp. 917, 918.
169 "There have been speculations-and M. Mallat (Geographical
History of the Philippines, 1848) is among the sanguine anticipators of such an advent-that in process of time the Philippines may
become the dominant political power of the Eastern world, subjecting
to its paramount influence the Netherlands Archipelago, the Pacific,
Australia, and even China and Japan, and that Manila is destined
to be the great emporium for the eastern and south-eastern world."
Bowring, A Visit to the Philippines, p. 97. "The position of Manila, a central point betwixt Japan, China, Annam, the English and
Dutch ports of the Archipelago and Australia, is in itself extremely
favourable to the development of a world-wide trade. Laperouse
said that Manila was perhaps the most fortunately situated city in
the world." Jagor, Travels in the Philippines, Eng. Ed., 1875, p.
11.




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251


English and a homegenous part of the community. Of
the Filipinos, at least as large a percent are of one race.
Of the Americans, the intellect of the people was little
developed. The graduating classes of all the colleges in
1789 counted up to about 170. The graduating classes
of one university in the Philippines exceed this number.
In economic conditions the United States were little advanced, although the country abounded in natural resources.  The same statement can be written for the
Philippines.170
In ante-Revolutionary days, members of the British
House of Lords and House of Commons held no very
flattering views of American ambitions and capacity.
They were termed "egregious cowards." Their manners
and ways of living were ridiculed. It was prophesied
that if Great Britain abandoned the colonies, they must
soon sue for succor or be overrun by every small state. A
philippic by an Englishman in 1820 reads:
"Since the period of their separation, a far greater proportion of their statesmen and artists and political writers have been foreigners, than ever occurred before in
the history of any civilized and educated people. During
the thirty or forty years of their independence, they have
done absolutely nothing for the Sciences, for the Arts, for
Literature, or even for statesman-like studies of Politics
or Political Economy. Confining ourselves to our own
country, and to the period that has elapsed since they
had an independent existence, we would ask, Where are
their Foxes, their Burkes, their Sheridans, their Windhams, their Horners, their Wilberforces?-where their
Arkwrights, their Watts, their Davys?-their Robertsons,
Blairs, Smiths, Stewarts, Paleys and Malthuses?-their
Porsons, Parrs, Burneys, or Bloomfields?-their Scotts,


170 See Hart, Epochs of American History-Formation of the
Union, 1750-1829, pp. 138, 139.




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PHILIPPINE GOVERNMENT


Campbells, Byrons, Moores, or Crabbes?-their Siddonses, Kembles, Keans, or O'Neils?-their Wilkies,
Laurences, Chantrys?-or their parallels to the hundred
other names that have spread themselves over the world
from our little island in the course of the last thirty years,
and blest or delighted mankind by their works, inventions,
or examples? In so far as we know, there is no such
parallel to be produced from the whole annals of this
self-adulating race. In the four quarters of the globe,
who reads an American book? or goes to an American
play? or looks at an American picture or statue? What
does the world yet owe to American physicians or surgeons? What new substances have their chemists discovered? or what old ones have they analyzed? What
new constellations have been discovered by the telescopes
of Americans?-what have they done in the mathematics?
Who drinks out of American glasses? or eats from American plates? or wears American coats or gowns? or sleeps
in American blankets?-Finally, under which of the old
tyrannical governments of Europe is every sixth man a
slave, whom his fellow-creatures may buy and sell and
torture?" 171
No true American would concur with these biased assertions. But remembering-ponder the present greatness of the Republic-and ponder the black pictures which
the misanthropic have drawn of these Isles. No false
hopes should be aroused by Filipinos from the foregoing
parallel. At least it is interesting as preaching charity
and as showing possibilities.
Concede the inhabitants of the Philippines to be a nation, concede them their assets, and concede that the
171Rev. Sydney Smith, Who Reads an American Book, XXXIII
Edinburgh Review, January, 1820, pp. 78-80, printed in Hart, American History Told by Contemporaries, Vol. III, pp. 512-514. See
also Mrs. Frances Milton Trollope, Domestic Manners of the Americans (sec. ed.), 1832, I, 48-188.




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253


United States passes a law granting them independence
-What then? Some will contend that one cannot confer
independence on a people as one would present them
with a public library or a drinking fountain; those of this
mold will foresee oligarchy and anarchy on American
withdrawal.17     Independence may be even technically
granted the Philippines, but this will not necessarily mean
liberty or freedom for the people. The latter two qualities must be acquired.173 Mabini recognized this when he
spoke of many talking of "liberty without understanding
it." But "by nothing is this ripeness and capacity for
freedom so much promoted as by freedom itself." 1m Independence again may even be technically granted, but
this will not necessarily mean self-government. The latter
cannot be given.17 Yet self-government "must mani172 Ireland, The Far Eastern Tropics, pp. 258, 259. "Caciquism"
described in Le Roy, Philippine Life in Town and Country, Ch. 6.
See also Woodruff, Expansion of Races, p. 373.
173 See Address by Paul Monroe before the Lake Mohonk Conference, Oct. 23, 1910, pp. 96-98.
174 Humbolt, Sphere and Duties of Government, quoted in Woodburn, The American Republic, p. 26.
76 "Self-government is not a mere form of institutions, to be
had when desired, if only proper pains be taken. It is a form of
character. It follows upon the long discipline which gives a people
self-possession, self-mastery, the habit of order and peace and
common counsel, and a reverence for law which will not fail when
they themselves become the makers of law; the steadiness and selfcontrol of political maturity. And these things cannot be had
without long discipline.
"The distinction is of vital concern to us in respect of practical
choices of policy which we must make, and make very soon. We
have dependencies to deal with and must deal with them in the
true spirit of our own institutions. We can give the Filipinos constitutional government, a government which they may count upon
to be just, a government based upon some clear and equitable understanding intended for their good and not for our aggrandizement; but we must ourselves for the present supply that government. It would, it is true, be an unprecedented operation, reversing




254


PHILIPPINE GOVERNMENT


festly constitute the corner stone of the new edifice." 176
Capacity for independent self-government consists principally in maintaining public order, in upholding law, in
stern self-discipline, and in fulfilling international obligations.  Woe be the day if the Philippines gain the outward shell of independence and lose the inner substance
of freedom, liberty, and self-government!
Concede again the inhabitants to be an independent
nation with valuable assets and capable of self-government.   Even so, prudence would dictate that the citizens
mend the weak parts of the national structure, and even
aspire to the ideal state.  What Maximo Kalaw courageously terms "self criticism" should not be debarred from
exerting   its influence.'76a  All remaining    geographic,
ethnic, and economic barriers must be surmounted in
the process of Runnymede, but America has before this shown the
world enlightened processes of politics that were without precedent.
It would have been within the choice of John to summon his barons
to Runnymede and of his own initiative enter into a constitutional
understanding with them; and it is within our choice to do a similar thing, at once wise and generous, in the government of the Philippine Islands. But we cannot give them self-government. Selfgovernment is not a thing that can be 'given' to any people, because
it is a form of character and not a form of constitution. No people
can be 'given' the self-control of maturity. Only a long apprenticeship of obedience can secure them the precious possession, a thing no
more to be bought than given. They cannot be presented with the
character of a community, but it may confidently be hoped that they
will become a community under the wholesome and salutary influence
of just laws and a sympathetic administration; that they will after a
while understand and master themselves, if in the meantime they are
understood and served in good conscience by those set over them
in authority." Woodrow Wilson, Constitutional Government in
the United States, pp. 52, 53.
"We can not give them self-government save in the sense of
governing them so that gradually they may, if they are able, learn
to govern themselves." President Roosevelt, Message of 1908.
176 See Lord Cromer, Ancient and Modern Imperialism, p. 119 FF.
176a The Case for the Filipinos, pp. 240, 241.




GOVERNMENTAL STEPS


255


order to obtain a perfect union. Even geographic lines
can he altered. The ambition of the state should be to
secure complete ethnic homogeneity in its population as
a powerful element of national strength.  Such homogeneity has been, and can still more be, attained by a
common language, a common education, a common religion, a common aspiration, and a common economic
development. The essentials of self-government should
be striven for: Self-discipline, form of character, common counsel, a habit of order and peace, reverence for
law. Literacy and a general practical education should
be insisted upon. Rizal enjoined his countrymen: "I
have given proofs that I am one most anxious for liberties for our country, and I am still desirous of them.
But I place as a prior condition the education of the
people, that by means of instruction and industry our
country may have an individuality of its own and make
itself worthy of these liberties.  I have recommended
in my writings the study of the civic virtues, without
which there is no redemption." 7 A common language
should be provided; and obviously because of the efforts
spent to diffuse English, because of its general use, because the language of business and social intercourse in
the East, and because the language of free institutions,
it had best be the English language. Macaulay, whose
work in behalf of education in India was among his greatest accomplishments, in a minute regarding the use of
the English tongue said: "In India, English is the
language spoken by the ruling class. It is spoken by the
higher class of natives at the seats of government. It
is likely to become the language of commerce throughout
the seas of the East. It is the language of two great
European communities which are rising, the one in the
17i Quoted in Craig, Lineage, Life, and Labors of Jose Rizal, pp.
235, 236.




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PHILIPPINE GOVERNMENT


south of Africa, the other in Australasia; conmmunities
which are every year becoming more important, and
more closely connected with our Indian Empire. Whether
we look at the intrinsic value of our literature or at
the particular situation of this country, we shall see the
strongest reason to think that, of all foreign tongues.
the English tongue is that which would be the most
useful to our native subjects." 178   Mabini in his "True
Decalogue," published as a part of the constitutional
program for the Philippine Republic, included this provision:    "Whenever     the  English   language   is  sufficiently diffused through the whole Philippine Archipelago  it shall be declared    the  official language."179
Nothing     will  help    more    in   creating   solidarity
among    the  people   than   a  mutual idiom.      A   love
for constitutional liberty should be constantly fostered.
Industrial advance is essential and possible. Economic
178 See Syed Mahmood, A History of English Education in India,
pp. 50, 51, quoted in Thwing, Universities of the World, pp. 214, 215.
179 Quoted in Worcester's The Philippines Past and Present, Vol.
II, p. 778 n. citing Taylor, 19 MG., 20 MG. The desire of the rising generation of Filipinos for the continuation of English as the
national tongue is seen in Kalaw, The Case for the Filipinos, p.
245, and in numerous letters to the press. President Wilson, Division and Reunion, pp. 341, 342, writes: "If the Filipino people
are ever to come into a beneficial enjoyment of that self-government toward which American rule avowedly looks, they must
have a language-and this it is very evident, can be neither one of
their native dialects nor yet Spanish. Why then, should it not
be English, with its guaranty of communication with ourselves and
participation in our thought." Mr. E. H. Babbitt, XXV The
World's Work, Feb., 1908, p. 9903, predicts that within a century
English will be the vernacular of twenty-five per cent. of the
people of the world, and will be read by fifty per cent. Even
now seventy-five per cent. of mail matter is addressed in English. More than half of the world's newspapers are in English,
and as these have the largest circulation perhaps three-quarters of
the world's newspaper reading is done in English.




GOVERNMENTAL STEPS


257


independence is as important as political independence.
Attempts should be made to at least quadruple the per
capita amount of exports.       Foreign capital should be
encouraged to enter the Philippines. Chinese immigration would be an important factor in developing the resources of the Islands, and even in stimulating the race.180
Foreign immigration should, however, be safeguarded
in order not to endanger the existence of the state or its
customs or institutions.181 The keywords of the Baconian
I80 See Report, First Philippine Commission, Part X. The position of the Chinese in the Islands, under the Spanish administration,
is described by Jagor, Travels in the Philippines, Ch. XXVI. In his
opinion the Chinese "are destined to play a remarkable part, inasmuch as the development of the land-cultivation demanded by
the increasing trade and commercial intercourse can be effected
only by Chinese industry and perseverance." The probable effects
of the introduction of unskilled Chinese labor are concisely presented in Professor Jenk's admirable Report to the Secretary of
War, dated 1902: "It is believed that such a measure would
result, with here and there an individual exception, not at all to
the disadvantage of the Filipino, but in the long run decidedly
to his benefit through improved business conditions in the Islands,
which would furnish to him not merely a better market for his
produce, but also a better opportunity for engaging in the kind of
work for which he is best fitted and which most closely accords
with his tastes." Quoted in Ireland, The Far Eastern Tropics, p.
232.  "I am  emphatically opposed to the general policy of admitting the Chinese; first, because the Filipinos have the strongest
opinion that it will be for their detriment, and second, because I
believe the history of the Straits Settlements shows that it will be
not for their prosperity as distinguished from the material prosperity of the Islands." Address by Hon. William H. Taft, Civil
Governor of the Philippine Islands, delivered before the Union Reading College, printed in Vol. I, Off. Gaz. (Supplement), December
23, 1903, pp. 5, 6.  Professor Bean found that "The type of
students with a large amount of Chinese admixture have the
highest class standing." Bean, Racial Anatomy of the Philippine
Islands (1910) Ch. 1, p. 39.
181 See Burgess, Political Science and Constitutional Law, Vol.
I, pp. 43, 44.
P. I. Govt.-17.




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PHILIPPINE GOVERNMENT


doctrine "utility and progress" must be the national
motto.   Tranquillity is indispensable.    National vices
should  unflinchingly  be recognized    and  as unflinchingly eradicated. Charity for unjust prejudice should be
engendered in the land. Rizal was wont to say: "Wh\en
I read or hear the contemptuous European judgments of
my people, I remember my own youthful ideas, and the
anger that might flame up in me is quenched. Smiling, I
can repeat the French 'Tout comprendcre, c'cst tout pardonncr.' "182  United the Philippines can hope to stand,
divided they will fall. The Tagalog proverb runs: Ang
pagcatototo nang loob ang yguinagagaling nang lahat.Unity of purpose brings certainty of success.
The government of internal affairs can be expected to
run smoothly.    Maintenance of external relations will
prove more difficult-a navy, an army, a diplomatic and
consular corps,-money and yet more money needed. Remember, however, that under the Spanish administration,
the inhabitants of the Philippines bore all such expenses,183 that taxation is comparatively speaking small,
and that the national debt is insignificant. Unfortunately,
nationalism guided by the doctrine of Machivaele which
casts aside ordinary rules of morality has evolved into
national imperialism.  Such nations regard the world as
for the strong and in which the weak are condemned to
serve the powerful or to disappear.184 This dire future is
182 Quoted in XIX Review of Reviews for April, 1899, p. 471, summary of an article by Hjalmar Stolpe in the Nordisk Tidskrift.
183 See sec. 44 supra.
184 See Reinsch, World's Politics, pp. 3-15; Woodruff, Expansion
of Races, pp. 241, 325, 449, etc.; Millard, America and the Far
Eastern Question, pp. 486, 487. "After all it is only another round,
as it were, in the inevitable struggle between the superior and the
inferior races for the possession of the earth, with an inside fight
going on between the superior powers as to which shall attain the
greatest colonial and commercial efficiency. To-day it is clear that
the future belongs to the large and the powerful state. The day




GOVERNMENTAL STEPS


259


predicted for the Philippines. The spectre of Japanese
conquest bothered Spain and affects the policy of the
United States in the Philippines. It may be expected to
give concern to the new   Philippine Republic.186  There
will be those who will prophecy a speedy absorption of the
Islands on slight pretext by Japan. The Islands are too
near the vortex of the Pacific's great international storms.
Even so, fear of foreign control is true of other countries.  It is not improbable that some will favor annexation to Japan.186  Mayhap a Pan-Oriental Union or.
Japanese Monroe Doctrine will guarantee Philippine integrity.  One solution would be, independence under a
British protectorate, for thereby the Islands would rest
secure under the guns of the greatest Navy in the world.
would be developed by a commercial people, and would
be assured of a mild government with a minimum         of
intervention. The European conflagration may burn out
the baser elements of hatred andl greed leaving the finer
alloy of friendship and altruism.  Who can say?     Even
the wisest have erred in speculation.
The stars and stripesl lave been drawn aside to show
beautiful Filipinos the golden    sunrise of autonomy.
Whether or not autonomy shall blend into the perfect day
of independence, self-government, democracy, and liberty, free from foreign control, is chiefly for the Filipino
people to say. 'That is the new Philippine problem.
of the little compact and self-contained states, however high their
social efficiency may be, is over." The Chief Justice of Hongkong
in the Golden Horse-Shoe, by Stephen Bonsal, pp. 202, 203.
185 See the fair discussion of this question in Coolidge, The United
States as a World Power, pp. 357-364.
186 Several months before the outbreak (1895-96), the Katipunan
sent a deputation to Japan to present a petition to the Mikado, praying him to annex the Philippines. This petition, said to have been
signed by 5,000 Filipinos, was received by the Japanese government,
who forwarded it to the Spanish government. Foreman. The
Philippine Islands, 3d Ed. pp. 364, 365.




260


PHILIPPINE GOVERNMENT


Resume.
~ 79. American Philippine policy.86" —As a conclusion, evolving from the facts of these various governmental advances, can be seen fairly clearly a consistent
Philippine policy.  This policy begun haltingly and re —
luctantly under opportunist sponsors, dividing public
opinion into opposing camps, but never squarely decided
by the sovereign people, can yet be gleaned from the
words of the Presidents, the legislation of Congress,
and the interpretation of the Governors-General and other
high officials.
Various motives, as we have seen, had induced the
United States to retain the Philippines. Only one, the
altruistic desire to extend autonomy and popular selfgovernment to an alien race, and to promote the welfare
and prosperity of the Filipino people, had until recently
any marked effect on American Philippine policy. Said
Mr. Justice Holmes of the United States Supreme Court:
"So far as consistent with paramount necessities, our
first object in the internal administration of the Islands
is to do justice to the natives, not to exploit their country
for private gain." 187  For example, acquisition of the
Philippines was not for the purpose of acquiring the lands
occupied by the inhabitants.
Departing from the colonial history of other countries,
which, as in the Dutch administration of the East Indies,
meant exploitation of the Islands by force, chiefly for the
benefit of the home country, or which, as in the British
rule of India, became government also by force but subordinated to the broad national interests;188 the United
1861 See generally Kalaw, The Case for the Filipinos, Appendices
D, E, F.
187Carinio v. Insular Government (1909) 212 U. S. 449, 53 L. Ed.
594.
188 See Millard, America and the Far Eastern Question, pp. 405,
406.




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261


States elected to set a new ethical standard in the dealings of a powerful and dominant race with a weak and
subject race. Retaining the same spirit which had governed other acquisitions, the humane treatment of the
people in the Louisiana purchase, Florida, the Mexican
cessions, Alaska, Hawaii, and Cuba was pointed to with
pride. Government by affection in the role of trustees and
not government by force in the role of masters was the
national bipartisan platform. Going back to the early
history of the United States there was followed the report of the committee of the House of Representatives
appointed to consider and report upon the petition of the
inhabitants of Louisiana to be relieved from some of the
more arbitrary provisions of the Act of 1804, wherein it
was said: "Only two modes present themselves, whereby
a lependent province may be held in obedience to a sovereign state-force and affection. The first of these is
not only repugnant to all our principles and institutions
of government, but it could not be more odious to those
on whom it would operate than it would be hostile to the
best interests as well as the dearest predilections of those
by whom, in this instance, it would have to be exercised." 189 With the same legislative language and with
the same general principles used years before, new conditions were to be met in a similar tolerant spirit.
President McKinley was responsible for the initial policy. Who can doubt but what the martyred President's
motives were of the highest? Senator Hoar, his honorable critic, writes in his Autobiography: "I have no doubt
whatever that in the attitude that he took (talking of
McKinley), he was actuated by a serious and lofty purpose to do right. I think he was led on from one step
to another by what he deemed the necessity of the occasion." 189a Very early the President announced: "The
189 Snow, The Administration of Dependencies, p. 540.
189A Hoar, Autobiography of Seventy Years, Vol. II, p. 309.




262


PHILIPPINE (OVERNMENT


Philippines are ours not to exploit, but to develop, to
civilize, to educate, to train in the science of self-government. This is the path which we must follow or be recreant to a mighty trust committed to us." Not long before his assassination, Mr. McKinley said: "These Philippine Islands are ours, not to subjugate, but to emancipate; not to rule in the power of might, but to take to
those distant people the principles of liberty, of freedom
of conscience, and of opportunity that are enjoyed by the
people of the United States." Expanded in the inspired
proclamation of the Sclurman Commission, there was
laid down the cardinal principle that "the supremacy of
the United States must and will be enforced throughout
every part of the Archipelago, and those who resist it
can accomplish no end other than their own ruin." And
it stated that "the aim and object of the American government, apart from the fulfillment of the solemn obligations it has assumed toward the family of nations by the
acceptance of sovereignty over the Philippine Islands, is
the well-being, the prosperity, and the happiness of the
Philippine people, and their elevation and advancement
to a position among the most civilized peoples of the
world." Changes were to be effected by granting to the
Philippines "an enlightened system of government under
which the Philippine people may enjoy the largest measure of home rule and the amplest liberty consonant with
the supreme ends of government and compatible with
these obligations which the United States has assumed
toward the civilized nations of the world." The President of this Commission construed the American point
of view to mean "ever increasing liberty and self-government... and it is the nature of such continuously expanding liberty to issue in independence." 190
190 Philippine Affairs, A Retrospect and Outlook, An Address
by Jacob Gould Schurnian, President of the First Philippine Commission, before the Members of Cornell University, pp. 42, 90.




GOVERNMENTAL STEPS


263


President McKinley, in his Instructions to the second
Philippine Commission, stated definitely that the government to be continued and established was not designed
"for our satisfaction, or for the expression of our theoretical views, but for the happiness, peace, and prosperity
of the people of the Philippine Islanlds."  And Congress
in the Philippine Bill expressly "approved, ratified, and
confirmed" the presidential policy thus defined.  The
Senate, although not authoritatively, because the resolution never reached a vote in the House, showed its sentiments by passing the McEnery Resolution just after ratifying the Treaty of Paris, providing "That by the ratification of the treaty of peace with Spain it is not intended
to incorporate the inhabitants of the Philippine Islands
into citizenship of the United States, nor is it intended
to permanently annex said Islands as an integral part of
the territory of the United States; but it is the intention
of the United States to establish in said Islands a government suitable to the wants and conditions of the
inhabitants of said Islands to prepare them for local selfgovernment, and in due time to make such disposition
of said Islands as will best promote the interests of the
citizens of the United States and the inhabitants of said
Islands."
Mr. Roosevelt, succeeding Mr. McKinley in the Presidlential chair, followed sedulously the policy of the martyred President. In his first message to Congress on December 3, 1901, President Roosevelt said: "Our earnest
effort is to help these people upward along the stony
and difficult path that leads to self-government. We hope
to make our administration of the Islands honorable to
our Nation by making it of the highest benefit to the
Filipinos themselves.... It is no light task for
a nation to achieve the temperamental qualities without
which the institutions of free government are but an
empty mockery. Our people are now successfully gov



264


PHILIPPINE GOVERNMENT


erning themselves, because for more than a thousand
years they have been slowly fitting themselves, sometimes
consciously, sometimes unconsciously, toward this end.
What has taken us thirty generations to achieve, we cannot expect to see another race accomplish out of hand,
especially when the large portions of that race start very
far behind the point which our ancestors had reached
even thirty generations ago....  We do not desire to do for the Islanders merely what has elsewhere
been done for tropic peoples by even the best foreign
government. We hope to do for them what has never
before been done for any people of the tropics-to make
them  fit for self-government after the fashion of the
really free nations."  Guided undoubtedly by the advice
of Mr. Taft, he later carried tlTe Philippine policy farther
than had President McKinley, who did not mention the
word "independence," in his message at the beginning of
the second session of the Sixtieth Congress in 1908:
"I trust that 7(ithin a gcnerationt the time wzill (arriz'Ce th''n
the Philippines can decide for themselves whethcr it is
well for them to become independent or to continue under
the protection of a strong and disinterested power, able
to guarantee to the Islands order at home and protection
from  foreign invasion.  But no one can prophesy the
exact date when it will be wise to consider independence
as a fixed and definite policy. It would be worse than
folly to try to set down such a date in advance, for it must
depend upon the way in which the Philippine people
themselves develop the power of self-mastery." 190a
190a In his Autobiography, pp. 543-545, Mr. Roosevelt writes: "As
regards the Philippines my belief was that we should train them
for self-government as rapidly as possible, and then leave them
free to decide their own fate. I did not believe in setting the
time-limit within which we would give them independence, because I did not believe it wise to try to forecast how soon they
would be fit for self-government; and once having made the




GOVERNMENTAL STEPS


265


Mr. Taft, who, as President of the second Philippine
Commission, first Civil Governor, Secretary of War, and
President, had most to do with formulating and enforcing
American policies in the Philippines, upon the occasion
of the inauguration of the Philippine Assembly, said:
"The avowed policy of the national administration under
these two Presidents (McKinley and Roosevelt) has been
and is to govern the Islands, having regard to the interest
and welfare of the Filipino people, and by the spread
of general primary and industrial education and by practice in partial political control to fit the people themselves
to maintain a stable and well-ordered government affording equality of right and opportunity to all citizens. The
policy looks to the improvement of the people both industrially and in self-governing capacity. As this policy
of extending control continues, it must logically reduce
and finally end the sovereignty of the United States in
the Islands, unless it shall seem wise to the American
and Filipino peoples, on account of mutually beneficial
trade relations and possible advantage to the Islands in
their foreign relations, that the bond shall not be compromise I would have felt that it was imperative to keep it..
The time will come when it will be wise to take their own judgment as to whether they (the Filipinos) wish to continue their association with America or not. There is, however, one consideration upon which we should insist. Either we should retain complete control of the Islands or absolve ourselves from all responsibility for them. Any half and half course would be foolish and
disastrous. We are governing and have been governing the Islands
in the interests of the Filipinos themselves. If after due time
the Filipinos decide that they do not wish to be thus governed,
then I trust that we will leave; but when we do leave it must be
distinctly understood that we retain no protectorate-and above all
that we take part in no joint protectorate over the Islands, and
give them no guarantee of neutrality or otherwise; that, in short,
we are absolutely quit of responsibility for them, of every kind
and description."




266


PHILIPPINE GOVERNIENT


pletely severed." 91   Mr. Taft repeated the same idea in
his special report to the President on the Philippines and
on  numerous other occasions adding, however, that
"Any attempt to fix the time in which complete self-government may be conferred upon the Filipinos in their
own interest, is I think most unwise," 192 but intimating
that the necessary preparatory and educational period was
at least one generation.
All of the Governors-General, who served under Republican administrations, have naturally reached conclu191 Taft, Present Day Problems, p. 13.
192 Special Report of Wm. H. Taft, Secretary of War, to the President, "on the Philippines, p. 74. In the same report he said:
Shortly stated, the national policy is to govern the Philippine
Islands for the benefit and welfare and uplifting of the people of
the Islands and gradually to extend to them, as they shall show
themselves fit to exercise it, a greater and greater measure of popular self-government. One of the corollaries to this proposition is
that the United States in its government of the Islands will use
every effort to increase the capacity of the Filipinos to exercise
political power, both by general education of the densely ignorant
masses and by actual practice, in partial self-government, of those
whose political capacity is such that practice can benefit it without
too great injury to the efficiency of government.  What should
be emphasized in the statement of our national policy is that we
wish to prepare the Filipinos for popular self-government. This is
plain from Mr. McKinley's letter of instructions and all of his
utterances." p. 7. "That policy (of President McKinley and Secretary Root) is declared to be the extension of self-government to
the Philippine Islands by gradual steps from time to time as the
people of the islands shall show themselves fit to receive the additional responsibility, and that policy has been consistently adhered
to in the last seven years now succeeding the establishment of
civil government." p. 74. "It seems to me reasonable to say that
such a condition cannot be reached until at least one generation
shall have been subjected to the process of primary and industrial
education, and that when it is considered that the people are divided
into groups speaking from ten to fifteen different dialects, and that
they must acquire a common medium of communication, and that
one of the civilized languages, it is not unreasonable to extend the




GOVERNMENTAL STEPS


267


sions,193 practically identical with those of Presidents McKinley, Roosevelt, and Taft.
During all of this time, the Democratic party had been
the party of opposition. In its platform of 1900 was a,plank reading, "We favor an immediate declaration of
the nation's purpose to give to the Filipinos: first, a stable
form  of government; second, independence; and third,
protection from outside interference such ashasbeengiven
for nearly a century to the republics of Central and South
America." 194 Yet with the Democratic party in power
there came no abrupt change in the Philippine policy. A
statement by President Wilson, read by Governor-General Harrison in his inaugural address, was: "We regard
ourselves as trustees, acting, not for the advantage of the
United States, but for the benefit of the people of the
Philippine Islands. Every step we take will be taken with
a view to the ultimate independence of the Islands and as
a preparation for their independence; and Awe hope to
move toward that end as rapidly as the safety and the
permanent interests of the Islands will permit."      The
President, again stating his Philippine policy in a message
to Congress on December 2, 1913, said: "We must hold
necessary period beyond a generation. " p. 74. Mr. Taft was also
responsible for the motto "The Philippines for the Filipinos." Read
his address, "The Duty of Americans in the Philippines." 1 Off.
Gaz., Dec. 23, 1903, Supplement. See compilation of Mr. Taft's
utterances on the Philippines, Hearings before the Committee on
the Philippines, U. S. Senate, 63rd Congress, Third Session, pp.
400 et seq.
193 See Henry C. Ide, Philippine Problems, DCXXV No. Am.
Rev., Dec., 1907, p. 511; James F. Smith, The Philippines As 1
Saw Them, XXVII Sunset Magazine, Dec., 1911, p. 617; W. Cameron Forbes, "Our Philippine Policy," Address at 32d Lake Mohonk
Conference, October 14, 1914, p. 126 of Report; Hearings before the
Committee on the Philippines, U. S. Senate, 63rd Congress, Third
Session,'pp. 193, 194.
194Quoted in Latane, America as a World Power, 1897-1907, p.
129; Kalaw, The Case for the Filipinos, pp. 337, 338.




268


PHILIPPINE GOVERNMENT


steadily in view their ultimate independence, and we must
move towards the time of that independence as steadily
as the way can be cleared and the foundations thoughtfully and permanently laid." The Democratic platform of
1916 contains this plank: "We heartily indorse the provisions of the bill recently passed by the House of Representatives, further promoting self-government in the
Philippine Islands as being a fulfillment of the policy
declared by the Democratic party in its last national platform, and we reiterate our indorsement of the purpose of
ultimate independence for the Philippine Islands expressed in the preamble of that measure."  There has
resulted from Democratic administration increased Filipino self-government, especially in responsible offices,
and a corresponding lessening of American control, a liberal construction of what should constitute a stable government, and an acceleration of speed toward independence-all on the theory that the best way to teach
the Filipinos self-government, is by the exercise of selfgovernment-but    no  modification  of  fundamental
principles.
It will, therefore, be noticed that it is, what may he
termed "the compromise plan," under which in its practical application the Philippines are being administered.
There is meant by this statement that there have been
in the United States three schools of thought, each advocating conflicting doctrines as to the proper course to
be followed in the Islands. And the middle course has
been pursued. Archibald Cary Coolidge, in his Sorbonne
lectures of 1906-07, carefully describes these conflicting
doctrines as follows:
"The first and simplest is that of the Anti-imperialists:
that the Americans should simply get out as soon as
possible and hand over everything to the natives.
The partisans of these views 
stand on firm moral ground in their appeal to the higher




GOVERNMENTAL STEPS


269


principles, to the sense of justice, to the old ideal of
liberty, of the American people. They are derided by their
opponents as visionaries, but they disturb the conscience
of the nation; and their altruistic arguments are reinforced by a widespread impression that, for purely selfish
reasons, the country would be better off without its Philippine encumbrance.  At the other extreme from   the
Anti-imperialists are the more outspoken expansionists,
who laugh at sentimentality, and declare that the Philippines are a possession fairly acquired and worth retaining. They admit that it is the duty of the United States
to give the Islands as good government as possible, but
there should be 'no nonsense about it;' they would have
them ruled justly but firmly, without any pretence that the
inhabitants are capable of taking more than a very small
part in the work....  Between these two extreme
schools we find the opinion of Secretary Taft and those
who, from the President down, support his policy.
Its fundamental conception is that at the pres —
ent day the people of the Islands are incapable of complete
self-government, and that, as long as this continues to be
true, the Americans must take a part of the burden on
themselves; but that it is their bounden duty not only to
develop the country and insure material prosperity, but,
even more, to educate the natives, who are to be given
greater liberties as fast as they show themselves worthy
of them." 195
The Republican and Democratic parties, typifying different schools of thought become unitedly American in
this-As long as the Philippines are under the American
flag, American sovereignty is supreme and must be recog195 Coolidge, The United States as a World Power, pp. 159, 160,
162. See speech of Mr. Taft August 11, 1905, at Manila, where
the same- analysis is made, printed in Hearings before the Committee on the Philippines, U. S. Senate, 63rd Congress, Third Session, p. 400.




270


PHILIPPINE GOVERNMENT


nized. The Islands are held in trust for the people who
live in them. The government of the Islands must be
conducted with a primary and watchful regard for the
welfare and benefit of the Filipino people. The Filipinos
are to be given the largest measure of self-government
that is consistent with national authority, with training
in political science, and an increasing share in the government as they are found qualified. When a stable government can be estallished and when it is for the permanent interest of the Islands, American sovereignty will be
withdrawn and the independence of the Philippine Republic recognized by the United States. The two parties
slightly disagree in this-The fixing of a date for withdrawal, as also tile question whether the Filipinos shall
decide-those of the Republican faith generally advocating an unfixed date a generation or more away with a decision then by the Filipinos as to whether they desire complete independence-those of the Democratic faith favoring a stated or nearer date to be determined by the Congress of the United States. The necessary corollaries of
absolute independence, or a protectorate, or neutralization
are left unsolved with no unanimity of sentiment in either
party, but with a crystallizing sentiment in favor of an
unqualified withdrawal by the United States.
The foregoing was true, and in fact was written, prior
to the commencement of the great European struggle.
The Philippines have now become involved in the preparedness plans of the United States. Consequently a
new aspect of the American Philippine policy is more,
consideration of the safety of the United States, than
the welfare of the Filipino people. The Philippines are
thought by military experts to be difficult of defense and
thus a constant source of danger to the United States.
Of course if possession imperils the United States it likewise imperils the Philippines, so that again we get back
to the old starting point, the welfare of the Filipino




GOVERNMENTAL STEPS


271


people. The President in his message to Congress on
December 7, 1915, said:
"There is another matter which seems to me to be very
intimately associated with the question of national safety
and preparation for defense. That is our policy towards
the Philippines and the people of Porto Rico. Our treatment of them and their attitude towards us are manifestly of the first consequence in the development of our
duties in the world and in getting a free hand to perform
those duties. We must be free from every unnecessary
burden or embarrassment; and there is no better way to
be clear of embarrassment than to fulfill our promises and
promote the interests of those dependent on us to the
utmost. Bills for the alteration and reform of the government of the Philippines and for rendering fuller political justice to the people of Porto Rico were submitted
to the Sixty-third Congress. They will be submitted als,)
to you. I need not particularize their details. You are
most of you already familiar with them. But I (lo reconmmend them to your early adoption with the sincere conviction that there are few measures you could adopt which
would more serviceably clear the way for the great policies by which we wish to make good, now and always, our
right to lead in enterprises. of peace and good will and
economic and political freedom." 196a
Generally the Act of Congress of August 29, 1916,
which we denominate the Philippine Autonomy Act, in
conjunction with the fact that it was passed by both
Democratic and Republican votes, may be taken to renew
and state authoritatively American Philippine policy, i. e.,
Present autonomy and future independence-recognition
195a That the view which found the Philippines a weak spot in
the national armour was not confined to any party but was widespread, is shown by the preachments of former President Roosevelt.
See Theodore Roosevelt, America on Guard, XXXII Everybody's
Magazine, January, 1915, p. 120.




272


PHILIPPINE GOVERNMENT


of present American sovereignty but with a desire for a
future recognition of Filipino sovereignty-a non-partisan American agreement, with a wish that agitation cease,
that the question be considered closed for some time, anti
that the Filipinos demonstrate ability to establish a stable
government, when the question of complete independence
will again be taken up and decided in a non-partisan manner by the Congress of the United States.
~ 80. Outline of present administration. —As a
further conclusion, we are in a position to give an outline
(for which there is material which could be expanded into
a large volume) of the present structure and functions
of the Government of the Philippine Islands.
CiVil administration has progressed, as we have found.
through three principal stages-initial organization under
the President's Instructions to the Commission, reorganization in 1905 under the Philippine Bill and an Act of the
Philippine Commission (No. 1407), and now revision
under the Philippine Autonomy Act and the Administrative Code. The Philippine Autonomy Act is the Act of
Congress of August 29, 1916, becoming effective shortly
thereafter. The Administrative Code is Act 2657 of the
Philippine Legislature, effective July 1, 1916.
Insular Government.
The Insular Government is divided into the executive
power, the legislative power, and the judicial power.
Executive power is vested in the Governor-General, the
Vice-Governor, four executive departments, and bureaus
and offices. The Governor-General and the Vice-Governor are appointed by the President of the United States
by and with the advice and consent of the Senate. The
1 See Administrative Code of the Philippine Islands, Act 2657;
Handbook of the Executive Departments of the Government of
the Philippine Islands.




GOVERNMENTAL STEPS


273


heads of bureaus and offices are appointed by the Governor-General with the advice and consent of the upper
house of the Philippine Legislature, with the exception.
of the Insular Auditor and Deputy Auditor, who are appointed by the President, and the Insular Treasurer and
Assistant Treasurer who are appointed by the Secretary
of Warl while the Director of Coast Surveys is under
the direction of the United States Coast and Geodetic
Survey and the Chief Quarantine Officer is under the direction of the United States Public Health Service. As
a general rule, the head of a bureau is styled Director, but
there are exceptions, as the Insular Collector of Customs,
the Collector of Internal Revenue, the Insular Auditor,
the Insular Treasurer, the Chief of Constabulary, the
Chief Quarantine Officer, the Attorney-General, the
Purchasing Agent, and the Executive Secretary. A Civil.
Service law protects the merit system.
The Governor-Generallb is the Chief Executive of the
Islands. He is charged with the executive control of the
Philippine Government, subject to the approval of the
Secretary of War and the President. When he is absent
from the Philippine Islands, or is for any reason unable
to discharge his duties, or in case of a vacancy in the
office, the Vice-Governor serves as Acting Governor-General; if the Vice-Governor is likewise incapacitated, the
President may designate the head of an executive department as Governor-General. The Governor-General is assisted by the Executive Secretary, the Secretary to the
Governor-General, and an Aide-de-camp to the GovernorGeneral. In addition to his general supervisory authorla While the Administrative Code so provides (sec. 1760) the
Philippine Autonomy Act would seem to contemplate appointment
of the Insular Treasurer and Assistant Treasurer by the GovernorGeneral (secs. 21, 24).
lb See generally Barrows, The Governor-General of the Philippines, XXI Am. Hist. Rev., Jan., 1916, pp. 299-311.
P. I. Govt.-18.




274


PHILIPPINE GOVERNMENT


ity, the Chief Executive has various special powers
and   duties.   A  most important one       is the  pardoning power.2 A function somewhat unusual under the
American system     is his "ordinance power."       He has
practically the duties of an administrative court.       He
appoints   and  removes    officers.  He   is also   considere(l a  department head     with   direct control of the
Executive Bureau, the Bureau of Audits, the Bureau
of   Civil  Service,  and   all other    unattached   offices
and administrative branches of the government.           He
has general control over the regularly organized provinces, the cities of Manila and Baguio, the Department of
Mindanao and Sulu, and the municipalities.         The Supreme Court of the Philippines, in considering the powers
of the Governor-General and in holding him        free from
judicial control for his official acts, has said that "While
the duties imposed upon the Governor-General of the
Philippine Islands are not as great as those imposed
upon the President of the United States, we think he
holds a more responsible position than those held by the
state Governors." 8   The Governor-General is subject to
2 See Cabantag v. Wolfe (1906) 6 Phil. 273; Director of Prisons v.
Court of First Instance (1915) XIII O. G. 477; U. S. v. Filart
(1915) XIII O. G. 778; IV Op. Atty. Gen. P. I. 539; Op. Atty.
Gen. P. I., Nov. 14, 1913, quoting from the leading case of ex parte
Garland (1867) 4 Wall. 333, 560, 18 L. Ed. 366 as follows: "A
pardon reaches both the punishment prescribed for the offence and
the guilt of the offender; and when the pardon is full, it releases
the punishment and blots out of existence the guilt, so that in
the eye of the law the offender is as innocent as if he had never
committed the offence. If granted before conviction, it prevents
any of the penalties and disabilities consequent upon conviction
from attaching; if granted after conviction, it removes the penalties
and disabilities, and restores him to all his civil rights; it makes
him, as it were, a new man, and gives him a new credit and
capacity."
Severino v. Governor-General (1910) 16 Phil. 366, 385. See
also Forbes v. Chuoco Tiaco (1910) 16 Phil. 534.




GOVERNMENTAL STEPS


275


the restraints of removal or reversal by the President or
Secretary of W\ar and the rebuke of an informed and
courageous public opinion.
The four executive departments are the Department of
Public Instruction, the Department of the Interior, the
Department of Commerce and Police, and the Department
of Finance and Justice. The Philippine Legislature
is empowered to increase or abolish any of the executive
departments except the Department of Public Instruction. The Vice-Governor is the head of the latter. Each
department is under the executive control of the respective
Secretaries of departments, who exercise their functions
subject to the general supervision of the Governor-General. Excepting the Secretary of Public Instruction, they
are appointed by the Governor-General with the consent
of the upper house of the Legislature. When a Secretary of any department is unable from absence or disability to discharge his duties or when the position is vacant, the Governor-General performs the functions of the
office, or designates another to do so temporarily. The
Bureau of Non-Christian Tribes is specifically established
by Congress with general supervision over the public affairs of the inhabitants of the territory represented in the
Legislature by appointive Senators and Representatives;
it is embraced in a department designated by the Governor-General. The Bureau of Education and the Bureau
of Health (Philippine Health Service) must be under
the Department of Public Instruction. Other bureaus are
arranged in the departments by the Legislature. Bureaus
are usually divided into divisions or sections. Various
other institutions are also in existence. Of these there
can be mentioned the University of the Philippines, the
Philippine National Library, the Philippine National
Bank, the Board of Public Utility Commissioners, the
Code Committee, the Emergency Board, the Public Welfare Board, the Board of Marine Examiners and the




.276


PHILIPPINE GOVERNMENT


boards for the examination of the different professions.
the Efficiency Board, the Central Sugar Board, and the
New Industries Board. The central government publishes an Official Gazette weekly in English and
Spanish.'
Elections to fill all elective positions are held on the
first Tuesday of June of every leap year.
Legislative power is vested in the Philippine Legislature consisting of two houses as separate, co-ordinate
bodies, the Senate and the House of Representatives
(Philippine Assembly). The Legislature convenes in regular session on the 16th day of October of every year, unless a holiday, then on the first subsequent secular day. It
continues in session not exceeding one hundred days, Sundays not included. The Legislature may be called in special
session at any time by the Governor-General for a period
not longer than thirty days, exclusive of Sundays. When
lawfully convened, neither House can adjourn without the
consent of the other for more than three days, exclusive
of Sundays and holidays. Either House may require the
4 The Official Gazette was the successor of the Gaceta de Manila,
commenced in 1861 and continuing to the end of Spanish rule.
This was the official journal of the Spanish Government, containing all acts of legislation, orders of the Governors, pastoral letters,
and other official matters. The first number of the Official Gazette
appeared on September 10, 1902. It then gave an indication of
future policy; it contained-1. Current public laws; 2. Executive
Orders of thq Civil Governor; 3. A decision of the Supreme Court;
4. Opinions by the Attorney-General; and 5. Various administrative
circulars. Later in a "preliminary number" issued on January 1,
1903, there was printed "the General Orders of public interest, the
proclamations, and notices of the Military Government; the President's Instructions to the Commission; the announcement, proclamations, and important Acts of the Philippine Commission, and
other matter of a public nature issued prior to the date of establishing the Official Gazette relative to the establishment and development of the United States government in the Philippine
Islands."




GOVERNMENTAL STEPS


277


assistance of any officer of the government for purposes
of inquiry or investigation; it can punish for contempt.'
There is a Division of Legislative Records.
The House of Representatives         (Philippine Assembly)   is  the   popular   branch    of   the   Legislature.
It consists of ninety members, eighty-one elected and
nine appointed by the Governor-General to represent the Mountain Province, Nueva Vizcaya, and the
Department of Mindanao and Sulu.          The official term
is three years. The House chooses its Speaker, Secretary, and other officers.  Organization is much the same
as in the several states or in Congress.       An unusual
feature is the practice of calling a caucus of all members
irrespective of party affiliations prior to formal assembly.6
The Philippine Senate succeeds the Philippine Commission.   The Islands are divided into twelve        senate
districts, each with two Senators. All are elected except
two to represent the Mountain Province, Baguio, Nueva
Vizcaya, and the Department of Mindanao and Sulu,
6 "The power of obtaining information for the purpose of framing laws to meet supposed or apprehended evils is one which has,
from time immemorial, been deemed necessary, and has been exercised by legislative bodies.... An investigation instituted
for the mere sake of investigation, or for political purposes not
connected with intended legislation, or with any of the other matters upon which the house could act, but merely intended to subject
a party or body investigated to public animadversion, or to vindicate him or it from unjust aspersions, where the legislature had
no power to put him or it on trial for the supposed offenses, and
no legislation was contemplated, but the proceeding must necessarily
end with the investigation, would not, in our judgment, be a legislative proceeding, or give to either house jurisdiction to compel
the attendance of witnesses, or punish them for refusing to attend."
People ex rel. McDonald v. Keeler (1885) 99 N. Y. 463, 2 N. E. 615,
52 Am. Rep. 49. See Op. Atty. Gen. P. I. Nov. 26, 1910.
6 See Commissioner Singson, The Filipino Legislator; His Difficulties and Successes, I Philippine Law Journal, August, 1914, p.
12, meeting criticism of this practice.




278


PHILIPPINE GOVERNMENT


who are appointed by the Governor-General.       Qutalifications for office are higher than for the IHouse. At the
first election, Senators are chosen for terms of three or six
years, thereafter for six years. It also chooses a presiding officer and other officers.
Every bill or joint resolution which has passed both
houses is presented to the Governor-General for approval
or veto.   If approved, the bill or resolution becomes a
law. The Governor-General can veto particular items
in appropriation bills.    If disapproved, the respective
houses can reconsider the measure and by a two-thirds
vote repass it.  If the Governor-General shall not then
approve, the President of the United States has final and
absolute power of approval or disapproval. Bills relating to public lands, timber, mining, the tariff, immigration, and the currency require the approval of the President in all cases.
The Supreme Court in the Bull case held that the power
of the Philippine Legislature was similar to that of a
State legislature.  Consequently, the rule is: "An Act
of the legislative authority of the Philippine government
which has not been expressly disapproved by Congress
is valid unless its subject-matter has been covered by congressional legislation, or its enactment forbidden by some
provision -of the organic laws. The legislative power
of the government of the Philippines is granted in general terms subject to specific limitations." 7  The Philip7U. S. v. Bull (1910) 15 Phil. 7, 29. In accord Ocampo 7'.
Cabangis (1910) 15 Phil. 631; McGirr v. Hamilton (1915) XIII
O. G. 879; Elkins v. People (1909) 5 Porto Rico Fed. 103; 4
Encyc. U. S. Supreme Court Reports, p. 121, citing numerous cases.
"The Philippine Commission possesses general powers of legislation
for the Islands, and its laws are valid unless they are prohibited by
some act of Congress, some provision of the Constitution, or some
provision of a treaty." Gasper v. Molina (1905) 5 Phil. 197, 201.
'"While the statement has its exceptions, we believe, generally speaking that the United States Philippine Commission, and now the




GOVERNMENTAL STEPS


279


pine Autonomy Act confirms the judicial view by granting
to the Philippine Legislature "general legislative power"
except as therein provided (secs. 7, 8, 12). The Legislature is also given certain specific powers within the limitations named. Thus it determines the salaries of all offiPhilippine Legislature, may legislate and adopt laws upon all subjects not expressly prohibited by the Organic Law (Act of Congress of July 1, 1902) or expressly reserved to Congress. Congress
did not attempt to say to the Philippine Legislature what laws it
might adopt. Congress contented itself by expressly indicating what
laws the Legislature should not adopt, with the requirement that
all laws adopted should be reported to it, and with the implied
reservation of the right to nullify such laws as might not meet
with its approval."  U. S. v. Pompeya (1915) XIII O. G. 1684.
But compare with Weigall v. Shuster (1908) 11 Phil. 340; Snow v.
U. S. (1873) 18 Wall. 317, 21 L. Ed. 784; Territory of Utah v.
Daniels (1889) 6 Utah, 288, 5 L.R.A. 444; 38 Cyc. p. 199 note.
"The Act of Congress was the creator of the Commission and
indeed of the government of these Islands, which is the creature
of its creator. Its powers are defined, prescribed and limited by tlh
Act which created it, and by such other lawful acts of its creator
as may further define, prescribe, limit, or expand these powers. It
cannot lawfully transcend or infringe upon the limits thus prescribed, and any Act of the Commission repugnant to the Act of
Congress which created it, or which is repugnant to any other
lawful Act of its creator defining, prescribing or limiting its authority is void and invalid.... The Act of the Commission in so
far as it is in conflict with or in any wise repugnant to the various
Acts dealing with the same subject matter must be held to be void
and of no effect. Paraphrasing slightly the language used in the
early case of Kemper v. Hawkins (1 Va. Cases, 20-24), it may be
said that the Acts of the Congress of the United States are to the
Commission, or rather to all the departments of the Philippine
Government, what a law is to individuals; nay, they constitute
not only a rule of action to the various branches of the government, but it is from them that the very existence of the power
of the government flows, and it is by virtue of the Acts of Congress that the powers (or portions of the right to govern) which
may have been committed to this government are prescribed. The
Act of Congress was the Commission's commission; nay, it was
its creator." In Re Guarifia (1913) 24 Phil. 37, 44, 45.




280


PHILIPPINE GOVERNMENT


cials in the insular government not appointed by the President, but the salaries of the latter-Governor-General
$18,000 (P36,000), Vice Governor $10,000 (P20,000),
Chief Justice $8,000 (P16,000) Associate Justices,
$7,500 each (P15,000 each), Auditor $6,000 (P12.00O)
and Deputy Auditor $3,000 (I6,000) must be provided
for. In exercising these general or specific powers the
purpose of the legislator should be to register not what
the will of the people commands, but what the reason of
the people should demand-to act not as a mere delegate but as a fully empowered attorney for his constituents and the people at large.8 In this connection President Wilson says of the responsibilities of the legislator:
"The modern representative has to judge of the gravest
affairs of government, and has to judge as an originator
of policies. It is his duty to adjust every weighty plan,
preside over every important reform, provide for every
passing need of the state. All the motive power of government rests with him. His task, therefore, is as complex as the task of governing, and the task of governing
is as complex as is the play of economic and social forces
over which it has to preside." 9
Judicial power 10 is vested in the following courts: The
United States Supreme Court on appeal, Supreme Court
of the Philippine Islands, Courts of First Instance, justice
of the peace courts, the municipal court of the city of
Manila, and township courts. The Court of Customs
Appeals, the Land Registration Court, and Tribal Ward
8 See Burgess, Political Science and Constitutional Law, Vol. II, p.
106.
Woodrow Wilson, The State, p. 562.
10 See George R. Harvey, The Administration of Justice in the
Philippines, I Philippine Law Journal, February, 1915, p. 330;
Former Secretary of Finance and Justice Araneta, Appendix, Vol.
II, Worcester, The Philippines Past and Present, p. 988.




GOVERNMENTAL STEPS


281


Courts are abolished." The Philippine Courts are in a
broad sense constitutional courts."s They are legally and
properly constituted, and their decisions, adjudications,
judgments, and decrees are valid, binding, and enforceable throughout the Archipelago.1       The whole judicial
system is modeled upon Anglo-American precedents."'
English and Spanish are the official languages of the
courts.
The courts of superior jurisdiction are the Supreme
Court and the Courts of First Instance, and, in a sense,
the Supreme Court of the United States.
The Supreme Court of the United States has jurisdic-0
tion on appeal or writ of error of final judgments and
decrees of the Supreme Court of the Philippine Islands
in the following cases: 1. In which the Constitution, or
any statute, treaty, title, right, or privilege of the United
States is involved. 2. Or in which the value in controversy exceeds $25,000 (p50,000).       3. Or in which the
title or possession of real estate exceeding in value the
sum  of $25,000 (150,000) is involved or brought in
question.   The procedure as far as applicable is that
regulating district courts of the United States."' Cases
1 The organization of tribal ward courts was provided in Acts
of the Legislative Council of the Moro Province.
12 Ocampo v. Cabangis (1910) 15 Phil. 625, 631.
l U. S. v. Beecham (1910) 15 Phil. 273.
1 Alzua v. Johnson (1912) 21 Phil. 308; M. E. R. & L. Co. v.
Del Rosario (1912) 22 Phil. 433; Conchada v. Director of Prisons
(1915) XIII O. G. 1478, holding Act 2347 valid.
16 See Philippine Bill, sec. 10; The U. S. Judicial Code (1911) sec.
248; Philippine Autonomy Act,' sec. 27. The following cases have
concerned appeals to the United States Supreme Court: Cortes 71.
Yu-Tivo (1903) 2 Phil. 24; Obras Pias v. Regidor (1903) 2 Phil.
151; Warner v. 771 Objectors (1905) 5 Phil. 330; U. S. v. Rosa
(1909) 14 Phil. 394; De la Rama v. De la Rama (1906) 201 U. S.
303, 11 Phil. 746; Behn Meyer v. Campbell (1907) 205 U. S. 403,
11 Phil. 769; Paraiso v. U. S. (1907) 207 U. S. 368, 11 Phil. 799:
Tiglao v. Insular Government (1910) 215 U. S. 410, 54 L. Ed. 257;




282


PHILIPPINE GOVERNMENT


which have gone from the Supreme Court of the Philip.
pines to the United States Supreme Court have shown
a lack of knowledge of Federal procedure on the part of
attorneys.
The Supreme Court of the Philippines consists of seven
judges, the Chief Justice and six Associate Justices. They
Martinez v. International Banking Corporation (1911) 220 U. S.
214, 55 L. Ed. 438; Enriquez v. Enriquez (1911) 222 U. S. 123,
56 L. Ed. 122; Enriquez v. Enriquez No. 2 (1911) 222 U. S. 127,
56 L. Ed. 124; Beecham v. U. S. (1911) 223 U. S. 708, 56 L. Ed.
623; Harty v. Municipality of Victoria (1912) 226 U. S. 12, 57 L.
Ed. 103; Alzua v. Johnson (1913) 231 U. S. 106, 58 L. Ed. 142;
Ocampo v. U. S. (1914) 234 U. S. 91, 58 L. Ed. 1231; Gsell v.
Collector of Customs (1915) 237 U. S. 93. "We follow and sustain
the local law as applied by the court below unless we are constrained to the contrary by a sense of clear error committed." Villanueva v. Villanueva (1915) 239 U. S. 293. "Whether prohibition is
technically the proper remedy, historically speaking, we need not
inquire. On such a matter we should not interfere with local
practice except for good cause shown. In substance the decision
of the Supreme Court was right." Tiaco v. Forbes (1913) 228 U.
S. 549, 57 L. Ed. 960.
"It is admitted,..   that the questions presented by the
third and fourth assignments of error were not made in the courts
below, but a consideration of them is invoked under rule 35, which
provides that this court, 'at its optoin, may notice a plain error
not assigned.'
"It is objected on the other side that Paraiso v. United States,
207 U. S. 368, 52 L. Ed. 249, 28 Sup. Ct. Rep. 127, stands in thway. But the rule is not altogether controlled by precedent. It
confers a discretion that may be exercised at any time, no matter what may have been done at some other time. It is true we
declined to exercise it in Paraiso v. United States, but we exercised
it in Wilborg v. United States, 163 U. S. 632, 658, 41 L. Ed. 289,
298, 16 Sup. Ct. Rep. 1127, 1197; Clyatt v. United States, 197 U. S.
207, 221, 49 L. Ed. 726, 731, 25 Sup. Ct. Rep. 429, and Crawford v.
United States, 212 U. S. 183, 53 L. Ed. 465, 29 Sup. Ct. Rep. 260, 15
A. & E. Ann. Cas. 392. It may be said, however, that Paraiso v.
United States is more directly applicable, as it was concerned with the
same kind of a crime as that in the case at bar, and that it was
contended there, as here, that the amount of fine and imprisonment




GOVERNMENTAL STEPS


283


are appointed by the President of the United States, by
and with the consent of the Senate, and serve during good
behavior. The Court is in regular session from the first
of July to the first of April of each year. The calendar
is called for two terms of court, the first commencing
on the second Monday of January and the second on the
second Monday of July. During vacation periods one
of the Justices remains on duty.     The Supreme Court
sits in banc, the Chief Justice presiding.    Five of the
Justices constitute a quorum for the transaction of business. The concurrence of at least four members of the
Court is necessary to the pronouncement of a judgment.
The clerk of the Supreme Court and the reporter of the
Suprene Court are its principal ministerial officials. Tlhe
Court exercises both original and appellate jurisdiction.
The United States Supreme Court has held in this connection that the Supreme Court of the Philippines hears
an appeal as a trial de nozo, and has the power to re-examine the law and the facts on the record; that in reviewing the judgment of the Court of First Instance in a criminal case, it may determine for itself the guilt or innocence of the defendant upon proofs presented at the trial;
and that in a criminal case, it may increase sentence on
appeal by the accused, but has no jurisdiction on appeal
by the government after acquittal in the trial court.16
imposed inflicted a cruel and unusual punishment. It may be that
we were not sufficiently impressed with the importance of those
contentions, or saw in the circumstances of the case no reason
to exercise our right of review under rule 35. As we have already
said, the rule is not a rigid one, and we have less reluctance to
disregard prior examples in criminal cases than in civil cases, and
less reluctance to act under it when rights are asserted which are
of such high character as to find expression and sanction in the
Constitution or Bill of Rights." Weems v. United States (1910)
217 U. S. 362, 54 L. Ed. 796.
16 Serra v. Mortiga (1907) 204 U. S. 470, 11 Phil. 762; Pendleton
v. U. S. (1909) 216 U. S. 305, 54 L. Ed. 491; Kepner v. U. S.




284


PHILIPPINE GOVERNMENT


Judges of First Instance and Auxiliary Judges are appointed by the Governor-General with the advice and
consent of the upper branch of the Philippine Legislature
to serve until they shall reach the age of sixty-five years.
Twenty-six judicial districts are constituted. One Judge
of First Instance is assigned to each district except the
city of Manila which has four branches. Seven Auxiliary Judges of First Instance are designated for as many
groups. Their functions are to assist the Judges of First
Instance, to substitute for a Judge of First Instance, and
temporarily to supply any vacancy that may occur. Court
is held at the provincial capital, except when otherwise
provided. Sessions are convened on all week days, when
there are cases ready for trial or other court business to
be dispatched. The Court is in regular session except
during the months of May and June during which judges
are assigned to vacation duty. Judges of First Instance
may be removed from office pursuant to prescribed procedure. The Governor-General may also temporarily suspend a Judge. Each court has a clerk of court, a sheriff,
and a fiscal. Its judisdiction is both original and appellate.
One justice of the peace and one auxiliary justice of
the peace are appointed by the Governor-General for each
municipality, township, and municipal district, although
the territorial jurisdiction of any justice may be made to
extend over any number of municipalities, townships, or
districts. A justice of the peace holds office during good
behavior. Qualifications are fixed with special examinations provided for. They act under the supervision of the
Judge of First Instance who makes recommendations as
to suspension, removal, or appointment to the GovernorGeneral. Certain officials serve as ex-officio justices of
the peace. The powers of the justice of the peace are


(1904) 195 U. S. 100, 11 Phil. 669; Trono v. U. S. (1905) 197 U. S.
521, 11 Phil. 726.




GOVERNMENTAL STEPS


285


limited, those at provincial capitals having a more extensive jurisdiction.17  Salaries vary for the four classes
and for provincial capitals from P50 a month toP300 a
month (Manila).
The municipal court of the city of Manila with a
Municipal Judge has principally criminal jurisdiction.18
Township courts have even more limited jurisdiction
than justice of the peace courts.
The jurisdiction of the courts is fixed by sections 26
and 27 of the Philippine Autonomy Act in connection
with Act 136 of the Philippine Commission. The Legislature can add to but not diminish this jurisdiction.19 The
jurisdiction of the several courts is too extensive and
complicated to be here described. The procedure of the
courts is naturally that known as Code Pleading. In addition to the simple rules of the Remedial Code, the courts
will therefore adopt liberal views as to pleading. The
Supreme Court says: "The whole purpose and object of
procedure is to make the powers of the court fully and
completely available for justice. The most perfect procedure that can be devised is that which gives opportunity for the most complete and perfect exercise of the
powers of the court within the limitations set by natural
justice." 20 The Islands also possess a Torrens System
and a Cadastral Survey Act."1
17Narcida v. Bowen (1912) 22 Phil. 365; Tuason v. Crossfield
(1915) XIII O. G. 1043.
18 See Davis v. Director of Prisons (1910) 17 Phil. 168.
19Weigall v. Shuster (1908) 11 Phil. 341; Barrameda v. Moir
(1913) 25 Phil. 44, and other cases.
20 Manila Railroad Co. v. Atty. Gen. (1911) 20 Phil. 523, 529.
See also Lizarraga Hermanos v. Yap-Tico (1913) 24 Phil. 504, 513.
21 "The sole purpose of the Legislature... was to bring
the land titles of the Philippine Islands under one comprehensive
and harmonious system, the cardinal features of which are indefeasibility of title and the intervention of the state as a prerequisite to the creation and transfer of titles and interests, with




286


PHILIPPINE GOVERNMENT


The General Land Registration Office is maintained in
the city of Manila under the supervision of the Judge of
the fourth branch of the Court of First Instance.      The
office has a chief, an assistant chief, and a chief surveyor.
The office is the head of the clerical and archival system
of the Courts of First Instance. The chief of the office
is deemed to be clerk of the fourth branch of the Court
of First Instance of the city of Manila, and the clerk of
all other Courts of First Instance in so far as concerns
matters relating to registration of land. Regulations are
issued by him.
The Attorney-General is the principal law officer of the
government.    It is his duty to represent the government
of the Philippine Islands in all cases civil and criminal
to which the government or any officer thereof in his official capacity is a party.22  It is also his duty to render
official opinions to the following: 1. The Chief Executive. 2. The President of the upper house of the Philippine Legislature.  3. The Speaker of the House of Representatives (Philippine Assembly). 4. The heads of Executive Departments. 5. The Chiefs of Insular Bureaus.
6. The trustee of any government institution. 7. Provincial fiscals.23 The Department of Mindanao and Sulu has
an Attorney and the city of Manila and every province a
fiscal24-in Baguio known as the city attorney. All are
the resultant increase in the use of land as a business asset by
reason of the greater certainty and security of title." City of Manila v. Lack (1911) 19 Phil. 324. 328. See also Alba v. De la Cruz
(1910) 17 Phil. 49; De Jesus v. City of Manila (1914) XIII 0. G.
131; Legarda v. Saleeby (1915) XIII 0. G. 2118; Altavas, Systems
of Land Registration in the Philippines, 3 Philippine Law Review,
January, 1914, p. 126.
2SJua v. The Insular Collector of Customs (1915) XIII 0. G.
2124.
3 Op. Atty. Gen. P. I. Dec. 2, 1910; sec. 1281, Adm. Code.
2 See Malcom's Compiled and Annotated Provincial Government
Act, sec. 11 and extensive notes.




GOVERNMENTAL STEPS


287


appointed by the Governor-General and serve under the
supervision of the Attorney-General. They try criminal
cases, represent the province or municipality or its officers
in civil actions, and act as legal adviser to the provincial
and municipal authorities.
In the city of Manila and each of the several provinces
there is a sheriff.  In the city of Manila and in the
provinces of the Department of Mindanao and Sulu, the
functions of the sheriff are exercised by the respective
clerks of the Courts of First Instance. Excepting Manila
sheriffs are paid by fees.
A register of deeds is maintained for the city of Manila and the several provinces with special provision for
the Mountain Province. Usually the fiscal performs the
duties. Judges of First Instance have supervision over
them. Doubtful questions may be referred to the Judge
of the fourth branch of the city of Manila for an order.
Notaries public 2 in the provinces are appointed by the
Judge of First Instance of the province for a term of
two years, there being at least one for each municipality.
In Manila they are appointed for the same period by the
Supreme Court. Many officers act as notaries public ex
officio. The Notarial Law governs their powers and
duties.
The Government of the Philippine Islands recognizes
five distinct units, 26 outside of the Insular Government,
for administrative purposes-Provincial Government, dividing into regularly and specially organized provinces;
Municipal Government, dividing into municipalities,
townships, and settlements; the city of Manila; the city
of Baguio; and the Department of Mindanao and Sulu.
25 See Feria, Manual de los Notarios Publicos.
26Acts Nos. 82, 83, 183, 787, 1396, 1397, 1963, 2408,-Administrative Code.




288


PHILIPPINE GOVERNMENT


Provincial Government."7
Provinces are the units of government next below the
Insular Government. They are of two classes: regularly
organized provinces 28 and specially organized provinces.
The latter are Batanes, Mindoro, Mountain Province,
Nueva Vizcaya, and Palawan. The regularly organized
provinces include all provinces except the specially organized provinces and the provinces in the Department of
Mindanao and Sulu. The distinction between the two
classes of provincial governments is mainly that the regularly organized provinces are given more popular government than those specially organized. The chief officers in the province are the provincial governor, the superior administrative officer of the province with manifold duties, the provincial treasurer, who is the superior
financial officer of the province, and two members of the
provincial board. The provincial governor and the members of the provincial board, known as "vocales," are
elected for a term of four years. They constitute the
provincial board, which has a secretary. The provincial
treasurer is appointed by the Governor-General. Lieutenant-governors and other officials are provided for the
sub-provinces.   Other provincial officers, most of whom
are under Insular control, are provincial fiscals, provincial assessors, division superintendents of schools,
district auditors, district health officers, district engineers,
27 For detailed description of regularly organized provinces see
Malcolm's Compiled and Annotated Provincial Government Act.
For detailed description of specially organized provinces see
Worcester, The Philippines Past and Present, Vol. II, Chs. 21, 22.
28 The regularly organized provinces are Albay, Ambos Camarines,
Antique, Bataan, Batangas, Bohol, Bulacan, Cagayan, Capiz, Cavite,
Cebu, Ilocos Norte, Ilocos Sur, Iloilo, Isabela, Laguna, La Union,
Leyte, Misamis, Nueva Ecija, Occidental Negros, Oriental Negros,
Pampanga, Pangasinan, Rizal, Samar, Sorsogon, Surigao, Tarlac,
Tayabas, Zambales.




GOVERNMENTAL STEPS


289


internal revenue agents, postal inspectors, mining recorders, sheriffs, registers of deeds, clerks of court, and local
land officers.
Municipal Govern nent."
The Municipal Law succeeding the Municipal Code
(Act 82, as amended) governs municipalities.   Four,
classes of municipalities according to population are
recognized. The Township Law succeeding the Township Government Act (Act 1397, as amended) governs
the townslips and settlements. It includes special provisions for elections. Settlements may be established in
localities where the majority of the inhabitants have not
progressed sufficiently in civilization or are so remote or
small in numbers as to make organization inadvisable.
The townships and settlements may elect a popular representative to lay their needs before the higher authorities.
Municipalities and townships are both subdivided into
barrios.  The chief officers of the municipalities and
townships are the president, vice-president, treasurer, secretary, and councilors, all elected excepting the secretary
and treasurer-and in a sense municipal boards of health
or municipal sanitary divisions.
City of Manila.
The city of Manila is granted a special charter. The
Administrative Code changes its government from the
commission form, modeled somewhat on that of the
District of Columbia, to one of checks and balances. The
government is vested in a Mayor and a Municipal Board.
The Mayor is appointed by the Governor-General with
the consent of the upper house of the Philippine Legis29 See sec.'144 infra; Malcolm's Compiled and Annotated Municipal
Code; and Villamor, Prontuario de Practica Administrativa Municipal y Provincial.
P. I. Govt. 19.




290


PHILIPPINE GOVERNMENT


lature for a term of four years. He is the chief executive
officer of the city. The Municipal Board consists of ten
elective members holding office for four years. It is the
legislative body of the city with the Mayor having the
right of veto.  There are four city departments: Department of Engineering and Public Works in charge of
the City Engineer; Police Department in charge of the
Chief of Police; Law Department in charge of the fiscal;
and Fire Department in charge of a Chief. Municipal
duties are also performed by a number of Insular Bureaus.
A Board of Tax Appeals of seven members is appointed
by the Governor-General on the first day of January of
each odd-numbered year.
City of Bagnio.
The city of Baguio is in a way regarded as a summer
capital for the Philippines. Consequently, it is granted a
special charter. Its government is vested in a Mayor,
Vice-Mayor (both appointed by the Governor-General)
and a City Council. The Mayor is given various.powers
and duties including membership in the council. The
Vice-Mayor is a member of the City Council and acts for
the Mayor in his absence. The Council is the legislative
body and is composed of the Mayor, Vice-Mayor, and
three other members-two elected by the voters of Baguio
and one appointed by the Governor-General. It has been
held that the council is not clothed with the powers conferred upon township councils.80  An advisory council
of five Igorots is constituted. The other city officers are
the city secretary, city health officer, city engineer, city
attorney, assistant city attorney, chief of police, city
treasurer, city assessor, and the board of tax appeals.


0 U. S. v. Pacis (1915) XIII 0. G. 1778.




GOVERNMENTAL STEPS


291


Departimclt of Mindantao and Sulu.
The Department of Mindanao and Sulu with a civil
administration succeeds the Moro Province with quasimilitary government. Since the majority of the inhabitants are non-Christians recognizing the authority of their
datos, the Department is given a special organic law allowing practical freedom from Insular control.31 The Department consists of the entire Island of Mindanao, excluding only the Provinces of Misamis and Surigao, together with the Sulu Archipelago, and including the islands known as Jolo Group and the Tawi Tawi Group.
The chief department officers are the Governor. Secretary, Attorney, Treasurer, and Delegate.     These officials
constitute the Administrative Council which is an advisory board to the Governor with additional powers.
All are appointed by the Governor-General. Other officers are the Senior Supervising Engineer, Superintendent of Schools, and the Chief Health Officer. The
Department is divided into the Provinces of Agusan,
Bukidnon, Cotobato, Davao, Lanao, Sulu, and Zamboanga. Each province has a provincial governor, provincial secretary-treasurer, third member of the provincial
board, provincial fiscal, and a provincial health officer81 "The government before the arrival of the Americans, as also
afterward, except wherein it is modified by the American administration, was tribal and patriarchal. The population of the Moro
country was not numerous and was scattered as compared with the
other islands of the Archipelago. This population was governed
by numerous petty dattos. The most powerful of these dattos did
not have under his jurisdiction more than 1,000 men. Each datto
had certain territorial jurisdiction, or a certain amount of land
under his control. Within this land he and his sacopes, slaves, and
subjects constructed a fortress called a cotta and inside and around
the cotta, he and his subjects lived. They took refuge in the fortress to defend themselves when attacked. There were conflicts of
territorial jurisdiction between the various dattos." Cacho v. The
Government of the United States (1914) 28 Phil. 616.




292


PHILIPPINE GOVERNMENT


all at present appointed, although provision is made for
the future elections of provincial governors and third
members. The provincial board consists of the governor,
secretary-treasurer, and the third member. Under the
provinces are municipal corporations with provision made
for special municipal governments.
Finance.82
Revenues are derived mainly from customs duties, internal revenue taxes, income taxes authorized by an Act
of Congress, and various municipal sources of revenue.
The per capita taxation for all purposes is about five
pesos, as against three times as much for the United
States.38 Trade (imports and exports) annually approximates two hundred forty million pesos. The government
is run without financial assistance from the United States.
The total bonded indebtedness of the Philippines could
be not to exceed thirty million pesos, exclusive of friar
land bonds; actually at this writing it is thirty-two million
32 See Report of the Auditor for the fiscal year 1915; Report,
Chief, Bureau of Insular Affairs for 1915.
88 "The people of the Philippines should not hesitate...
to impose upon themselves a just burden of taxation; without adequate revenues, there can be no genuine material progress.  In
the Philippines at present the per capita taxation of the Insular
Government is 2.83; per capita taxes imposed by the central governments of other countries are far greater. For example, the per
capita tax in Belgium is 117.96; in Japan, *10.00; in France, r39.75;
in Spain, 122.71; in Turkey, 1*8.24; in Great Britain, 134.00; and
in the United States, P14.22. It may thus be seen that the Philippine government could fairly impose some additional taxation without injustice to any inhabitant, and with assurance of benefits to
the whole population. Such increased taxation ig essential not only
to meet the present situation, but also to care for the future needs
of the government; all who desire the success of the Filipino people
under more extended powers of self-government should unite to
provide for the future sufficient revenues and resources." From
Message of Governor-General Harrison, Oct. 16, 1914.




GOVERNMENTAL STEPS                       293
two hundred fifty thousand pesos, including fourteen million friar land bonds, an insignificant per capita
debt    of   three    pesos.34     Appropriations      totalling
about thirty million pesos based on a budget prepared by the Executive Secretary and submitted by the
Governor-General are made annually by the Philippine
Legislature. An Emergency Board sits between legislative sessions. The fiscal year coincides with the calendar year.   The pre-audit system is in force.     The country
is on a gold basis with a gold dollar equivalent to onehalf of the United States gold dollar as the theoretical
34 "The bonded indebtedness of the Philippine government at
present is limited to two issues, the friar-land bonds, $7,000,000, and
the public works permanent improvement bonds, $5,000,000, while
municipal bonds have been issued only for the city of Manila,
$4,000,000, and the City of Cebu, $125,000 (total $16,125,000). The
following table shows comparatively the per capita debts of various
countries, nmany of which must be considered less prepared than
the Philippines to support the burdens shown:
Per capita Per capita
Counties.                       debt.   interest.
New Zealand.................. $363.05  $11.58
Uruguay...................   124.81      7.67
Argentina...................     91.50      4.38 
Chili....................  47.10     1.93
Servia.....................      44.88      2.23
Egypt.......................    40.95      1.56
Brazil.......................  38.60  1.36
Cuba........................    28.76      2.01
Japan........................   26.00      1.45
Haiti........................  24.05  1.26
Turkey......................  22.95  3.21
Santo Domingo...............     19.97      1.78
Mexico......................     14.50.87
Venezuela...................     14.42.72
United States.................   10.88.23
Ceylon.......................  6.54.34
Colombia...................      5.26.30
Philippine Islands.............   1.50.06
Report, Chief, Bureau of Insular Affairs, 1912; Id. 1915, p. 10.




294


PHILIPPINE GOVERNMENT


unit of value, and with a gold standard reserve of something over eighteen million pesos.85 The circulating medium is silver and paper. The money in circulation is
over fifty million pesos. Treasury deposits are made with
designated banks in the Philippines and the United States.
A Philippine National Bank absorbing the Agricultural
Bank has just been organized. The Philippine Postal
Savings Bank antedates those of the United States.
Public Order.
Public order is maintained by the United States Army
and Navy, the Philippine Constabulary, and the municipal police. The United States Army constitutes the Philippine Department and with the Filipino Scouts totals
about seventeen thousand men.36 The Navy has stations
at Cavite and Olongapo.     Both the Army and the Navy
have military   reservations.   The Governor-General is
empowered to call upon the commanders of the military
and naval forces of the United States to prevent or suppress violence, invasion, or insurrection. The Constabulary is a general police force under military discipline.87
It numbers about five thousand. Its work is not confined
85 See article by J. L. Manning, Acting Insular Treasurer, entitled Our Currency System, in Cablenews-American, Yearly Review Number, 1911, p. 40; Testimony of Charles A. Conant, George
E. Roberts, Director of the Mint, and others before the Committee
on Insular Affairs, 57th Congress.
86 See article by Col. H. O. H. Heistand in Cablenews-American, Yearly Review Number, 1911, pp. 28, 40; Tan Te v. Bell (1914)
27 Phil. 354; Davis, Military Law of the United States, 3d Ed.;
Berkhimer, Military Government and Martial Law; Carter, The
American Army, pp. 90-93. The Philippine Scouts are an integral
part of the regular army. Atkinson v. Stewart (1912) 23 Phil. 405.
87 See article by Col. J. G. Harboard, Asst. Director, Philippine
Constabulary, entitled The Constabulary, 1910-1911, in CablenewsAmerican, Yearly Review Numbcr, 1911, pp. 35, 118; Constabulary
Manual; Ch. 32, Adm. Code.




GOVERNMENTAL ST IEPS


295


to police matters, but includes such diverse functions as
emergency, fire, quarantine, and agricultural duties. Eacl
municipality possesses a police force 38 varying in numbers and efficiency, Manila having the most numerous and
best. The reformatory system with industrial training
is the basis of the penal law. The prisons are Bilibid
Prison, Iwahig Penal Colony, San Ramon Penal Farm,
and provincial and municipal jails.
Education.
The public school system 89 begun by the military was
permanently established under Act 74, the School Law.
The Director of Education with two assistants is in
charge. Under them the Islands are divided into thirtyseven divisions, each with a superintendent of schools.
In turn the provincial divisions are divided into districts,
each with a supervising teacher. The number of scholars
attending the public schools is over half a million.  The
teachers number about ten thousand.      Twenty-one l)er
cent of the government revenues are spent for purposes
of education. Private individuals also donate money, materials, labor, and land for the schools. There are three
types of instruction: primary, intermediate, and secondary, the latter including thirty-five provincial high!
schools and eighteen provincial trade schools. The more
88 See article by Col. Williams C. Rivers, Assistant Director,
Philippine Constabulary, entitled Municipal Police, in CablenewsAmerican, Yearly Review Number, 1911, p. 36.
39 See last Annual Report of the Director of Education, 1915;
Report of the Secretary of Public Instruction, 1914, in Report of
the Philippine Commission, same year; Service Manual of the
Bureau of Education; Charles H. Magee, The Philippine Public
Schools, I. Philippine Review, Jan., 1916, p. 43; David P. Barrows,
Education and Social Progress in the Philippines, XXX Annals
American Academy, Political and Social Science, July, 1907, p. 69;
Charles F. Thwing, Education in the Far East, pp. 246 et seq.




296


PHILIPPINE GOVERNMENT


important of the schools provided for special vocational
purposes are the Philippine Normal School, the Philippine
School of Arts and Trades, the Philippine Nautical
School, the Philippine School of Commerce, the School
for the Deaf and Blind, the School of Household Industries, and the Central Luzon Agricultural School.
Other branches of the Government also have educational
features-the Weather Bureau with its famous Observatory, the Bureau of Science with its museum, lab)ratories,
and aquarium, the Philippine Health Service with its hospitals and sanitary commissions, the Bureau of Prisons
with practical training for the inmates, the Bureau of
Lands with instruction in surveying, the Bureau of Printing with apprentice instruction in the art of printing, the
Philippine General Hospital with a school for nursing and
midwifery, the Bureau of Agriculture with agricultural
demonstration and extension, the Bureau of Constabulary with an Academy for Officers of the Philippine Constabulary, and the Bureau of Forestry with a forestry
school. Indeed, there is hardly any part of the government but has, in some way, educational purposes. At the
summit of public instruction, and separate from  the
Bureau of Education, is the University of the Philippines,'0 which offers opportunities for higher education.
It includes the Colleges of Medicine and Surgery, Agriculture, Liberal Arts, Engineering, Veterinary Science,
and Law, the Schools of Fine Arts, Pharmacy, and Education, the Forest School, and the Graduate School of
Tropical Medicine and Public Health.  The governing
body is the Board of Regents with the Secretary of Public
Instruction as Chairman ex officio, and with the President
40 See University Catalogue for historical sketch; Austin Craig,
The History of the University of the Philippines, in Builders of a Nation, pp. 87-92; Lawrence E. Griffin, The University of the Philippines, in Cablenews-American, Yearly Review Number, 1911, pp.
79, 106.




GOVERNMENTAL STEPS


of the University in direct charge. Over two thousand
students are enrolled.
Many private schools 41 exist. Some are small institutions. Others are conducted under the auspices of the
churches. The more important of the private schools having governmental recognition are the University of Santo
Tom/s, Ateneo de Manila, Silliman Institute, San Juan
de Letran, Assumption College, Sta. Escolastica College,
Centro Escolar de Sefioritas, Sta. Isabel College, Instituto de Mujeres, Bishop Brent's School at Baguio, Colegio Mercantil, Instituto Burgos, Liceo, Seminario de
Vigan, and La Salle College.     Private professional
schools have recently been standardized.
Extra-Legal Forces.
Extra-legal forces exercise a more potent influence in
the Philippines than is generally discerned. We cannot
even name them all much less describe them. Some are
for civic betterment.  Others are for commercial purposes, as the Asociacion Economica de Filipinas. Others
are social institutions, as the Anti-Tuberculosis Society,
La Gota de Lcche, the Philippine National League for the
Protection of Early Infancy, the Philippine Orphanage
Association, the Society for the Prevention of Cruelty
to Animals, and the Juvenile Protective Association. The
churches are, of course, the greatest charitable, educational, and religious forces. Others are learned bodies, as
the Philippine Academy, Sociedad de Conferenciantes,
Sociedad Geogrdfica de Filipinas, Institute of Criminology, and Societies for the Cultivation of Native
Languages. Moreover, particular classes organize, as the
merchants into associations, the farmers into co-operative
41 Report, Secretary of Public Instruction, 1914, pp. 266, 312-314;
and information from P. S. O'Reilly, Superintendent of Private
Schools.




298


PHILIPPINE GOVERNMENT


bodies and a Congress, labor into unions an(t Congresses,
professions into   associations, newspapermen     into the
Asociacion de Periodistas, women into women's clubs,
fraternities into lodges, and there are besides numerous
literary, recreative, and athletic clubs. Finally, there are
political parties inseparable from popular government and
the most powerful influence outside the administration.
They exist in the Philippines as the Nacionalista Party,
the Progresista Party, and the Partido Nacional Dem6 -crata-all with varying schisms.42
Defects and Merits.
We are too close to passing events to form a just estimate of the defects and merits of the American administration in the Philippines. That mistakes have been made
will indubitably be true. What they are the future historian must ascertain.   The occasional sizzling criticism
of foreigners, generally imbued with a belief in the rectitude of their particular country's colonial policy and utterly unable to fathom American altruism, need not be
taken too seriously.42& In extenuation, let the critic of the
42 As to judicial control of political parties, both with and
without express legislative authorization, see Stephenson v. Board of
Election Com'rs (1898) 118 Mich. 396, 76 N. W. 914, 42 L. R. A.
214, 74 Am. St. Rep. 402; Philipps v. Gallagher (1898) 73 Minn.
528, 76 N. W. 285, 42 L. R. A. 22; People ex rel. Coffey v. Democratic General Committee (1900) 164 N. Y. 335, 58 N. E. 124, 51
L. R. A. 674; State ex rel. McGrael v. Phelps (1910) 144 Wis. 1,
128 N. W. 1041, 35 L. R. A. (N. S.) 353; A. H. Tuttle in 1 Mich.
L. Rev. 466; F. R. Mechem in 3 Mich. L. Rev. 364-Hall's Cases
on Constitutional Law, p. 108; Stimson Popular Law Making, p.
288. For the Philippines note Severino v. Governor General (1910)
16 Phil. 366.
42a "To put it bluntly, the opinion of English observers is that
American rule in the Philippines has resulted so far in something
little short of chaos." Sydney Brooks, An English View of Our
Philippine "Fiasco," 51 Harp. Wkly., Aug. 31, 1907, p. 1270. For a




GOVERNMENTAL STEPS


299


future remember the sober language of a Justice of the
Supreme Court: "The government here is a new one.
Its establishment is a step in ways heretofore untrodden
by the American Republic. Its history furnished no example, its law no precedent.    Her statesmanship had, up
to the moment, framed no model from which a colony
government might be fashioned; the philosophy of her
institutions presents no theories along which action may
unhesitatingly proceed. There is no experience to guide
the feet; no settled principles of colonial government and
administration to which men may turn to justify their
action or dissipate their doubts." 4    But that there are
vastly over-balancing merits must likewise be undeniable."   What they are is for the Filipinos and foreign
investigators to say. It is hardly fitting for an American
to expand the ego and to boast of "my" or "our" acSpanish view of why the United States has "failed" in the Philippines, see P. Sincero, in Nuestro Tiempo, reviewed in 35 Am. Rev. of
Rev., Jan., 1907, p. 106.
43 Concurring opinion of Moreland, J., in Forbes v. Chuoco Tiaco
(1910) 16 Phil. 534, 589. See also the delightful narrative by Professor Albert Bushnell Hart of Harvard University. The Obvious
Orient, pp. 256, 283, in which he shows the difficulties encountered
by the American government.
44Read Barrows, A decade of American Government in the
Philippines; Worcester, The Philinpines Past and Present, Vol.
II, Ch. 35; Coolidge, The United States as a World Power, pp.
169, 170. "There have been mistakes-mistakes that were very
expensive to the Filipino taxpayers: there have been injustices and
wrongs. Some things have been overdone and other things have
been neglected. I do not, however, on that account underrate the
value of your work as a whole, and I gladly reiterate that considering all the circumstances you have done marvels." Speech of
Hon. Manuel L. Quezon in the House of Representatives, The Philippine Bill, printed in Vol. 51, No. 268, p. 18777, November 2, 1914,
Sixty-Third Congress, Second Session, Congressional Record.
"The present regime of the Philippine Islands is one of the marked
successes of the American people. It stands high among the tropical
colonial governments of Christendom, for the skill with which




300


PHILIPPINE GOVERNMENT


complishments in the Philippines. May we not, however,
suggest that compared with the colonies of European powers or even with the experiences of a state of the American Union, the American record in the Philippines contains nothing for which one need be ashamed. The people
of the United States can well be proud of the men who
have guided the government of the Philippine Islands —
Taft, Wright, Ide, Smith, Forbes, Gilbert, Martin, Harrison-ably assisted by a splendid array of American
officials and employees.  They have differed in policies —
all were sterling Americans.
it is framed and the efficiency with which it is carried on; it is
immeasurably the best government that has ever been known within
the Archipelago; furthermore, it is not too much to say that no
territory, no city and no state within the United States has a
system of government so carefully thought out, so well concentrated
and so harmonious in its parts as that of the Philippine Islands."
Hart, The Obvious Orient, pp. 256 et seq. "No one can review the
achievements of the past decade in the Philippines without granting
it to be a signal triumph over unusual difficulties and misunderstandings. This is a brief period as measured by the usual progress
of society, but in colonial administration it has frequently happened
that great changes have not waited upon long lapse of time.
Caesar was in Gaul only eight years; Clive's famous Indian governorship lasted less than six; Raffles was in Java only live. A
decade of co-operative effort between Americans and Filipinos has
changed the future of the Archipelago." Barrows, A Decade of
American Government in the Philippines, p. 1.




GOVERNMENTAL STEPS


301


Representative Authorities.
Senate Documents 62, 55th Congress, Third Session;
136, 56th Congress, First Session; 148, 56th Congress,
Second Session; 182, 57th Congress, First Session.
Foreign Relations, 1898; Id., 1899; Id., 1900.
Spanish Diplomatic Correspondence and Documents,
1896-1900.
Moore, International Law Digest, Vol. I, pp. 258-274;
520-532.
30 Stats. at L. 993, 1742, 1754; 31 Stats. at L. 895,
910, 1881, 1942.
Autobiography of George Dewey, Admiral of the
Navy (1913), Chs. XV, XVI, XVII, XVIII.
Rear Admiral Chadwick, The Relations of the United
States and Spain (1911), Vol. I, Ch. VI; Vol. II, Chs.
XIX, XX, XXI.
George F. Hoar, Autobiography of Seventy Years
(1903), Vol. II, Ch. XXXII.
Elbert J. Benton, International Law and Diplomacy of
the Spanish-American War (1908).
John Holladay Latane, America as a World Power
(1907), Chs. IV, IX.
Archibald Cary Coolidge, The United States as a
World Power (1908) especially pp. 148-171, 199, 346.
Reports of the Military Governors, 1899, 1900.
Reports of the War Department, 1899, 1900, 1901.
Report of the First Philippine Commission, especially
Vol. I, pp. 1-10, 121, 169-186.
Report of the Second Philippine Commission, November 30, 1900.
Report of the Philippine Commission, 1901, Vol. I;
Vol. II, pp. 281-285.
Magoon's Reports (1900), pp. 11-36.
Official Gazette, January 1, 1903; December 23, 1903,
Supplement.
Gazetteer of the Philippine Islands (1902).




302


PHILIPPINE GOVERNMENT


Jacob Gould Schurman, Philippine Affairs, a Retrospect and Outlook.
William H. Taft, Civil Government in the Philippines,
71 Outlook, May 31, 1902, p. 305.
William H. Taft (1908), Present Day Problems, pp.
1-42.
Daniel R. Williams, The Odyssey of the Philippine
Commission (1913).
Congressional Record, 56th Congress, Second Session,
pp. 3262, 3385, 3493, 3522.
Hearings before the Committee on the Philippines, 63d
Congress, Third Session, pp. 193, 194, 400; Appendices
A, B, D.
James A. Le Roy, The Americans in the Philippines
(1914), Vol. I, Ch. IX and pp. 373, 378, 379; Vol. II, pp.
68, 105-112, 275 et seq.
Dean C. Worcester, The Philippines Past and Present (1914), Chs. XI, XII and pp. 975, 977.
David P. Barrows, A Decade of American Government
in the Philippines (1914).
David P. Barrows, The Governor-General of the Philippines under Spain and the United States, XXI American Historical Review, January, 1916, pp. 299-311.
Juan Sumulong, The Philippine Problem from the Filipino Standpoint, 178 North American Review (1904),
p. 862.
Maximo M. Kalaw, The Case for the Filipinos (1916).
Administrative Code of the Philippine Islands (1916).




PART II.


FUNDAMENTAL.
CHAPTER 6.
THE RELATIONS BETWEEN THE UNITED STATES
AND THE PHILIPPINES.
~ 81. Expansion.
82. The right of the United States to acquire territory.
83. The right of the United States to govern territory.
84. Purpose prior to Spanish-American war.
85. The doctrine of the insular cases.
86. The power of congress.
87. The right of the United States to admit the Philippine Islands
into the Union as a state, to cede to a foreign power, or to
declare independent.
88. Application to constitutional relation of the Philippines to the
United States.
89. Congressional control.
90. Presidential control.
91. The bureau of insular affairs.
92. Resident commissioners to the United States.
~ 81. Expansion. —When         the  United    States became independent, the states occupied a narrow strip of
1 See I Moore, International Law Digest, pp. 429-611; Willis
F. Johnson, A Century of Expansion; Edward Bicknell, Territorial
Acquisitions of the United States; William A. Mowry, The Territorial Growth of the United States; Oscar P. Austin, Steps in the
Expansion of Our Territory; Archibald Cary Coolidge, The United
States as a World Power, pp. 30-39; Archibald R Colquhoun,
Greater America, Ch. II; Cyclopedia of American Government,
George H. Blakeslee, title "Annexations to the United States";
303




304


PHILIPPINE GOVERNMENT


land which straggled along the Atlantic seaboard from
Canada to Florida, populated inland to the Alleghany
Mountains with vague claims even to the Mississippi
River and the Great Lakes. Hardly anyone then dreamed2
that in a little more than a century by an expansion more
by accident than by design, the country would pass
straight through to the Pacific and over the seas to far
distant isles, northward to the Arctic regions and southward to the Torrid Zone. Yet that is exactly what has
happened. And now with the wisdom which comes from
experience, one can see that geographic barriers made
expansion inevitable.
Following the absorption of the Northwest Territory
in 1787, came the Louisiana purchase from Napoleon in
1803; the Florida purchase from Spain in 1819; the
Oregon set-off arranged with Great Britain in 1846; the
Texas annexation in 1845; the Mexican cessions in 1848
The Insular Cases, De Lima v. Bidwell (1901) 182 U. S. 1, 186 -195, 45 L. Ed. 1041; Downes v. Bidwell (1901) 182 U. S. 244, 252 -256, 45 L. Ed. 1088.
2 But Alexander Hamilton, in a letter to Washington, wrote:
"We must remain in a position to take advantage of circumstances,
we must be prepared to acquire Florida, and to annex Louisiana
and we must even wink further South." And Gouverneur Morris,
the author of that clause of the Constitution which confers upon
Congress the power to make rules and regulations respecting
territory and other property of the United States, writing in 1803
to Livingston said: "I am very certain that I had it not in contemplation to insert a decree de coerccndo inmperio in the Constitution of America. Without examining whether a limitation of
territory be or be not essential to the preservation of republican
government, I am certain that the country between the Mississippi
and the Atlantic exceeds by far the limits which prudence would
assign, if in effect any limitation be required. Another reason of
equal weight must have prevented me from thinking of such a
clause. I knew as well then as I do now that all North America
must at length be annexed to us. Happy, indeed, if the lust of
dominion stop there." Morris, Life and Writings (Sparks), Vol.
TII, p. 185; Willoughby on the Constitution, p. 328.




RELATIONS BETWEEN U. S. AND PHILIPPINES  305


and 1853; the Alaska purchase from Russia in 1867; the
Hawaiian annexation in 1898; the Spanish cessions in
1899; the Samoa agreement in the same year; the Panama
Canal Zone treaty in 1903; and other small acquisitions.
Proposals for the annexation of Canada, Cuba, Salvador,
Yucatan, and other territory were either made and rejected by the United States or seriously considered but
never accomplished. Practically every method by which
boundaries may be extended had been followed-by conquest, by diplomatic negotiations, by proffer of the constituted authorities, and by occupation. At a total cost of
something over $80,000,000.008 the United States
obtained land, the richest in the world, whose worth is
beyond the ken of man to approximate.
Always was there opposition to expansion which in
the cases of the Danish West Indies and the Dominican
Republic caused treaties to fail of ratification in the
Senate.  In the other instances where acquisition succeeded, arguments usually resting on expediency and
constitutionality were put forward by a vigorous minority.  Senator White denounced the Louisiana purchase as a curse. John Quincy in a speech on the admission of Louisiana as a State said: "You have no authority
to throw the rights and liberties and'property of this
people into hotchpot with the wild men on the Missouri,
nor with the mixed, though more respectable, race of
Anglo-Hispano-Gallo-Americans who bask on the sands
at the mouth of the Mississippi." As to the purchase of
8 Louisiana............$15,250,000
The Floridas................ 5,000,000
Mexican Cessions............ 25,000,000
Alaska..................... 7,200,000
Spanish-American War........ 20,000,000
Panama Canal Zone........... 10,000,000
Total.....................$82,450,000
P. I. Govt.-20.






306


PHILIPPINE GOVERNMENT


Alaska it was almost unanimously ridiculed. On the floor
of Congress it was termed "a wretched and God-forsaken
region, worth nothing, but a positive injury and encumbrance as a colony of the United States." The anti-imperialistic arguments against ratification of the Treaty
of Paris are too recent to need restatement.
Whether wisely or wrongly, the United States is a
world power.
~ 82. The right of the United States to acquire
territory. —The     Constitution   of the United     States
contains no provision expressly authorizing the acquisition of territory. A nice constitutional question consequently arose with the proposal to purchase Louisiana.5
President Jefferson and some of his party leaders while
wishing the culmination of the negotiations, yet as strict
constructionists doubted whether the Constitution warranted the acquisition of foreign territory.6 An amendment to the Constitution authorizing annexations was
indeed prepared but never submitted. When the subject
came before Congress for discussion, the constitutionality
of the annexation of territory In some form was admitted
4See generally Willoughby on the Constitution, Chs. XXII,
XXIII.
See Von Hoist, Constitutional History of the United States,
Vol. I, pp. 187 et seq.; Watson on the Constitution, Vol. II, pp.
1265 et seq.; Writings.of Jefferson, Gallatin, Morris, etc.
6 Writing to Senator Breckenridge on August 12, 1803, the President said: "But I suppose they (both Houses of Congress) must
then appeal to the nation for an additional article to the Constitution, approving and confirming an act which the nation had
not previously authorized. The Constitution has made no provision
for our holding foreign territory, still less for incorporating foreign
nations into our Union. The executive, in seizing the fugitive
occurrence which so much advances the good of their country, has
done an act beyond the Constitution. The legislature, in casting
behind them metaphysical subtleties, and risking themselves like
faithful servants, must ratify and pay for it, and throw themselves
on their country for doing for them unauthorized what we know




RELATIONS BETWEEN U. S. AND PHILIPPINES  307


by both parties. Senator Pickering, the great anti-expansionist of his time, declared that he "had never doubted
the right of the United States to acquire new territory,
either by purchase or by conquest, and to govern the
territory so acquired as a dependent province." 7 Congress formally acquiesced in the view that territory may
be lawfully acquired, by enacting statutes relating to
Louisiana.   The legal beginnings of this, the first acquisition of territory by the United States, had thus settled
the question so far as could be done by legislative and
executive action.
Shortly after the formation of the Union, in 1810, the
right to acquire and hold territory was touched upon
lightly by the United States Supreme Court 8 as one which
could be taken for granted.     With the cession of the
Floridas, it became necessary for the Court to take into
view the relation in which that territory stood to the
United States. In the course of a luminous and leading
opinion, Mr. Chief Justice Marshall, who had the benefit
of argument by able counsel, including Daniel Webster,
pointed out that "the Constitution confers absolutely on
the government of the Union the powers of making war
and of making treaties; consequently, that government
possessed the power of acquiring territory, either by conthey would have done for themselves had they been in a situation
to do it." Jefferson, Works, Vol. IV, p. 500; Von Hoist, Constitutional History of the United States, Vol. I, p. 191. Jefferson
wrote in similar tenor to Dickinson and Nicholson, but to Gallatin
he said that "there is no constitutional difficulty as to the acquisition
of territory." Writings of Albert Gallatin, Vol. I, pp. 113-115.
7Annals of Congress 1803. See Albert Bushnell Hart, Harper's
Monthly Magazine, January, 1900, p. 311. The question again
came to the fore in the debates attendant upon the annexation
of Texas. Cong. Globe, 28th Cong., 2d Sess., p. 331.
8 Sere and Laralde v. Pitot et al. (1810) 6 Cranch, 332, 3 L. Ed.
240.




308


PHILIPPINE GOVERNMENT


quest or by treaty." 9 This deduction has since, with little
or no argument, been followed by the courts.~1
One view, exactly concordant with the words of the
great Chief Justice, holds to the fundamental principle
that the Federal government possesses only express
powers and such other incidental and implied powers as
are necessary and proper to carry the express powers
into execution.1     The Constitution provides that "the
Congress shall have power..      to declare war"
(Art. 1, Sec. 8); "the President shall have to power to
make treaties..       " (Art. 2, Sec. 3).  Under the
first article, territory  could be acquired by conquest;
under the second by purchase. Consequently, when the
people and the States devested themselves of these powers,
there went with them, as necessary and proper to the
carrying out of such enumerated powers, the right to
acquire territory."
American Insurance Co. v. Canter (1828) 1 Pet. 511, 542, 7 L.
Ed. 242.
10 Fleming v. Page (1850) 9 How. 603, 13 L. Ed. 276; Stewart v.
Kahn (1870) 11 Wall. 493, 20 L. Ed. 176; U. S. v. Huckabee (1873)
16 Wall. 414, 21 L. Ed. 457; Insular Cases, etc.
11 See Constitution, Art. 1, Sec. 8, last paragraph; McCullough v.
Maryland (1819) 4 Wheat. 316, 4 L. Ed. 579; Kansas v. Colorado
(1907) 206 U. S. 46, 51 L. Ed. 956; and other leading cases.
12 According to the isolated decision in the celebrated Dred Scott
Case, the power of acquisition may also be derived from the power
of Congress to admit new states (Constitution, Art. 4, Sec. 3).
Scott v. Sanford (1856) 19 How. 393, 447, 15 L. Ed. 691. 'If it
(the power of annexation) is to be implied only from the latter
power (the right to admit new states), it would seem quite
reasonable to hold that it could be exercised in any case only for
the purpose of creating a new state out of the acquired territory,
and there would be no power to govern it except for that purpose;
but the right of Congress to admit the acquired territory as a state
or states, or to refuse to do so, according to its own judgment and
discretion, is universally admitted, and, therefore, it would seem to
follow that the power to acquire and govern cannot be derived
from the power to admit, for, if it did, all territory acquired by




RELATIONS BETWEEN U. S. AND PHILIPPINES 309


The other view is that territory may be acquired under
the primary and inherent power of sovereignty.   Thus
during the colonial period the British monarchs were
sovereign; after the revolution sovereignty passed to
and vested in the people; the sovereign people then reserved to tlemselves the power to acquire territory,
making the Federal government, especially in external
relations, the exclusive representative and embodiment
of the entire sovereignty of the nation, in its united
character and in its highest dignity and greatest force,
except as expressly prolibited. Said Mr. Justice Bradley
in his concurring opinion in the Legal Tender Cases, "The
United States is not only a government, but it is a national government, and the only government in this
country that has the character of nationality.
Such being the character of the general government, it
seems to be a self-evident proposition that it is invested
with all those inherent and implied powers which, at the
time of adopting the Constitution, were generally considered to belong to every government as such, and
as being essential to the exercise of its functions." 18 The
people designed the national government "to stand amid
all conditions and in every emergency, against everything
human,"-in the language of the Declaration of Independence "to do all...  things which independent
states may of right do." The theory then is that any
power possessed by any sovereignty, such as the normal
right to extend boundaries, particularly in view of the
"immutable principle of self-defense," is possessed by the
United States.
either of the methods stated would have to be converted into a
state or states." Address of John G. Carlisle before the American
Bar Association, 1902.
1s 12 Wall. 457, 554, 20 L. Ed. 287 (1870). See also Lamar, J., in
the Neagle Case (1890) 135 U. S. 84, 34 L. Ed. 55; Territory of
Utah v. Daniels (1889) 6 Utah 288, 5 L R A. 444.




310


PHILIPPINE GOVERNMENT


The last doctrine finds strong support from    eminent
publicists and lawyers.  Not to mention Mr. Charles A.
Gardiner in a monograph on the subject, Mr. Charles
Henry Butler in his work on the Treaty Making Power,
Mr. Magoon, Law Officer of the Bureau of Insular Affairs, in one of his scholarly reports, and Senators Platt
and Foraker, Professor Willoughby in the latest argument on the point says that the doctrine is the one
"which, constitutionally speaking, appeals to the author
as the soundest mode of sustaining the power of the
United States to acquire territory, as well as the one
which, in application, affords the freest scope for its
exercise. According to this doctrine, the right to acquire
territory is to be searched for not as implied in the power
to admit new    States into the Union, or as dependent
specifically upon the war and treaty powers, but as derived from the fact that in all relations governed by the
principles of International Law the general government
may properly be construed to have, in the absence of
express prohibitions, all the powers possessed generally
by states of the world.    This doctrine thus is that the
control of foreign relations being exclusively vested in
the United States, that government has in the exercise
of this jurisdiction the same power to annex foreign territory that is possessed by other sovereign States." 1
14 Willoughby on the Constitution, p. 340. Charles A. Gardiner,
Our Right to Acquire and Hold Foreign Territory, says: "The
right to acquire territory irrespective of its situs, contiguous or
foreign, by conquest, treaty, purchase, or discovery, is an acknowledged and well established attribute of sovereignty and has been
exercised by sovereigns from the beginning of recorded history."
Mr. Butler, Treaty-Making Power of the United States, Vol. I,
pp. 77, 78, says, "Not having surrendered any of its fully sovereign
powers, as to the matters wholly within its own domain, the
United States therefore possesses, in common with every other
sovereign power, this right of acquisition of territory which, in
the light of international law as we are now viewing it, includes




RELATIONS BETWEEN U. S. AND PHILIPPINES  311


Language of the highest judicial tribunal also justifies
this stand.   Generally, as said in Fong      Yue Ting v.
United States: "The United States are a sovereign and
independent nation, and are vested by the Constitution
with the entire control of international relations, and with
all the powers of government necessary to maintain that
the right to acquire, and to exercise sovereignty over, whatever
territory it may desire and can obtain by any method recognized
by international law, and also to extend such sovereignty over all
of the inhabitants thereof." Magoon in his Reports to the War
Department on the Legal Status of the Territory and Inhabitants
of the Islands Acquired by the United States During the War with
Spain, pp. 37, 84, says: "The United States derives the right to
acquire territory from the fact that it is a nation; to speak more
definitely, a sovereign nation. Such a nation has an inherent right
to acquire territory, similar to the inherent right of a person to
acquire property."  Senator Platt of Connecticut declared in the
Senate, December 19, 1898, that the United States "possesses every
sovereign power not reserved in its Constitution to the states or
to the people; that the right to acquire territory was not reserved,
and is, therefore, an inherent sovereign right; that it is a right
upon which there is no limitation and with regard to which there
is no qualification; that in certain instances the right may be
inferred from  specific clauses in the Constitution, but that it
exists independent of the clauses; that in the right to acquire
territory is found the right to govern it; that as the right to
acquire is a sovereign and inherent right, the right to rule is a
sovereign right not limited in the Constitution." XXXII Cong.
Record, No. 11, pp. 321-323.  Senator Foraker, in the United
States Senate July 1, 1898, in a debate with reference to the
annexation of Hawaii said: "Each one of those sovereign states
had every power that sovereignty enjoys ordinarily, and among
the powers so enjoyed by each one of the sovereign states was
the power to make treaties with foreign nations, and any kind of
a treaty it might choose to make, because there was no restriction
unless by itself upon the exercise of that power. It could make
war; it could make a treaty for the acquisition of territory; it
could annex in any way it saw fit to annex. But, Mr. President,
no Senator will contend here that any state in this Union has
that power now. That power has been lost to each and every
state of the Union. As the price for coming into the Union, it




312


PHILIPPINE GOVERNMENT


control and to make it effective." 15 Specifically, as said
by Mr. Justice White in Downes v. Bidwell:         "The decisions of this court leave no room for question that,
under the Constitution, the government of the United
States, in virtue of its sovereignty, supreme within the
sphere of its delegated power, has the full right to acquire
territory enjoyed by every other soverign nation." 16
Naturally there have been those who have attacked the
constitutional soundness of the inherent sovereignty
doctrine.  To them   it would seem   that no argument can
be drawn from the necessities of government or from the
nature of sovereignty outside of the Constitution.       To
them it is basic that the government of the United
States is one of delegated and limited powers.    It derives
its existence and authority altogether from   the Constitution and none of its branches can exercise any of the
was required to surrender it. The Constitution of the United
States prohibits to the states the exercise of the treaty-making
power with foreign nations. It prohibits all kinds of transactions
on the part of the states with foreign nations. No state could
acquire territory by treaty in any other manner. Therefore, each
one of the states in the Union has surrendered that power of
sovereignty. No one of them has it. Are we to be told that that
inherent power of sovereignty, which every state enjoyed before
it came into the Union, has been lost to the states and has not
been given to any other power? What has become of it? Where
has it gone? Our contention is that when to the states was denied
this power, which they had a right to exercise as a sovereign
power, it went by implication to the general government among the
implied powers, and it is not any 'higher law.' It seems to me it
is but the necessary and legitimate result of a fair construction
of the provisions of the Constitution."
A4 149 U. S. 698, 711, 37 L. Ed. 905 (1892).
16 182 U. S. 242, 303, 45 L. Ed. 1088 (1901). See also Mormon
Church v. U. S. (1890) 136 U. S. 1, 33, 34 L. Ed. 478; Legal Tender
Cases (1870) 12 Wall. 557, 20 L. Ed. 287; Chinese Exclusion Case
(1888) 130 U. S. 581, 32 L. Ed. 1068; and Jones v. U. S. (1890)
137 U. S. 202, 34 L. Ed. 691.




RELATIONS BETWEEN U. S. AND PHILIPPINES  313




powers   of government beyond      those  specified  and
granted.17
The writer's conclusion is this: The right of the
United States to acquire territory can no longer be questioned, since confirmed by legislative, executive, and
judicial authority. Situs or non-contiguity may affect
policy but not constitutional bearings. This right can
be adjudged as an implied power resting on the articles
of the Constitution conferring the express powers to
declare war and to make treaties. It can also be resolved
as a result of sovereignty, an attribute of every State,
which would persist if every line of the Constitution were
blotted out.  At least as Mr. Justice Day in the Dorr
Case,18 having particular reference to the manner in
which the Philippines were acquired, said: "It is
well settled that the United    States may acquire
territory in the exercise of the treaty making power by
direct cession as a result of war, and in making effectual
the terms of peace; and for that purpose has the powers
of other sovereign nations."
The procedure 19 for acquisition has been either by
treaty, by joint resolution, by statute, or by incorporation
into statehood. The first method has been followed except as to Texas, which was made a State, as to Hawaii,
which was annexed by joint resolution, and as to the
Guano Islands, which were recognized as under American
sovereignty by statute.
17Ex parte Merryman, Campbell's Reports, 246; Tyler, Life of
Taney, p. 651; Willoughby, The American Constitutional System,
pp. 147, 148, 149.
18 195 U. S. 138, 140, 49 L. Ed. 128, 11 Phil. 706, 708 (1904). "It
is too late in the history of the United States to question the
right of acquiring territory by treaty." Wilson v. Shaw (1906)
204 U. S. 24, 51 L. Ed. 351.
1 See Willoughby on the Constitution, p. 344.




314


PHILIPPINE GOVERNMENT


~ 83. The right of the United States to govern
territory.20-With the right to acquire territory admitted "it would be absurd to hold that the United
States has power to acquire territory, and no power to
govern it when acquired." 21 The United States cannot
be left helpless in the family of nations. In the language
of Mr. Chief Justice Marshall,22 "the power of governing
and of legislating for a territory is the inevitable consequence of the right to acquire and to hold territory." He
continues-"Could this position be contested, the Constitution of the United States declares that Congress
shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property
belonging to the United States."   In a later case 23 the
Chief Justice suggests another source for the power:
"Perhaps the power of governing a territory belonging
to the United States, which has not, by becoming a State,
acquired  the  means of self-government, may      result
necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power
and jurisdiction of the United States.    The right to
govern may be the inevitable consequence of the right
to acquire territory.  Whichever may be the source
whence the power is derived, the possession of it is
unquestioned."
The power to govern territory could therefore be
ascribed to any one of three sources-as a consequence
of the right of acquisition; because the territory is not
within the jurisdiction of any State; and from Article
80 See generally Willoughby on the. Constitution, Ch. XXIV.
21 Mormon Church v. U. S. (1890) 136 U. S. 1, 42, 34 L. Ed.
478. See also Murphy v. Ramsey (1884) 114 U. S. 15, 29 L. Ed. 47.
22 Sere and Laralde v. Pitot et al. (1810) 6 Cranch, 332, 336,
3 L. Ed. 240.
2 American Insurance Co. v. Canter (1828) I Pet. 511, 542, 7
L. Ed. 242.




RELATIONS BETWEEN U. S. AND PHILIPPINES  315


4, section 3,24 of the Constitution providing that "the
Congress shall have power to dispose of, and make all
needful rules and regulations respecting the territory or
other property belonging to the United States."
Gouverneur Morris, the author of the clause of the
Constitution just quoted, in response to a question as to
its precise meaning, plainly showed that it was the intention thereby to authorize the power to govern possible
acquisitions such as Canada and Louisiana.25     In other
words, the phrase "territory belonging to the United
States" wvas not meant to be a mere abstraction or the
equivalent of land. It was placed in a document prepared
for all time which would advance in scope with changing
conditions and which would represent all the essential
qualities usually found in sovereignty.    And while in
some decisions 26 the clause has been referred to as granting political and legislative control over the territories,
other cases have been more inclined to the view that the
power to govern territory "is an authority which arises
not necessarily from the territorial clause of the Constitution, but froin the necessities of the case, and from
the inability of the States to act on the subject." 27 The
Supreme Court only recently      admitted   that the full
scope of Article 4, Section 3, of the Constitution "has
24 Art. 4, Sec. 3, Par. 2, U. S. Constitution is analyzed word
by word in Snow, The Administration of Dependencies pp. 458-473.
See also Watson on the Constitution, Vol. II, pp. 1255 et seq.
25Life and Writings (Sparks) Vol. III, p. 192; Snow, The Administration of Dependencies, pp. 538, 539; Magoon's Reports, p.
63.
6 Cross v. Harrison (1853) 16 How. 164, 14 L. Ed. 889; U. S. v.
Guthrie (1854) 17 How. 284, 15 L. Ed. 102 (McLean, J.); Mormon
Church v. U. S. (1889) 136 U. S. 1, 34 L. Ed. 478.
27De Lima v. Bidwell (1901) 182 U. S. 1, 196, 45 L. Ed. 1041;
Downes v. Bidwell (1901) 182 U. S. 244, 45 L. Ed. 1088. See also
U. S. v. Kagama (1886) 118 U. S. 375, 30 L. Ed. 228.




316


PHILIPPINE GOVERNMENT


never been definitely settled." 28 Preferably it would now
be more logical to rest the power to govern, jointly on
the propositions that it is the complement of the right to
acquire territory, because it is not within the jurisdiction
of any particular State, and because it is given to Congress by Article 4, Section 3, of the Constitution.29
Whatever be the exact source of power the right to
govern territories has been so long exercised by Congress
and so long acquiesced in by the Courts that it is no
longer open to question.
~ 84. Purpose prior to Spanish-American War.Generally speaking all acquisitions before the SpanishAmerican War were of territory out of which States
could be formed. The land was suitable for American
colonization. The military and territorial governments
were but temporary neasures leading to permanent assimilation and incorporation. The statements of public
men, opinions of the Courts, laws of Congress, and the
solemn declarations of the treaties of annexation, all bear
out this view.
The provisions of the treaties in this respect are most
important, for therein the United States voluntarily assumed obligations regarding the future of the inhabitants
of the territory. The treaty with France as to Louisiana
settled the political status of the inhabitants by the following clause: "The inhabitants of the ceded territory
shall be incorporated in the Union of the United States,
and admitted as soon as possible, according to the
principles of the Federal Constitution, to the enjoyment
of all the rights, advantages and immunities of citizens of
the United States; and in the meantime they shall bemain28Kansas v. Colorado (1906) 206 U. S. 46, 89, 51 L. Ed. 956,
971. See also National Bank v. County of Yankton (1879) 101 U.
S. 129, 132, 25 L. Ed. 1046.
29 See Dorr v. U. S. (1904) 195 U. S. 138, 49 L. Ed. 128, 11 Phil.
706.




RELATIONS BETWEEN U. S. AND PHILIPPINES  317


tained and protected in the free enjoyment of their liberty,
property and the religion which they profess."80
Marshall conceded this to mean "that Louisiana shall be
admitted into the Union as soon as possible upon an equal
footing with the other States." 8  The succeeding treaties
with Spain as to the Floridas, with Mexico as to its
cessions, and with Russia as to Alaska in much the same
language 82 showed a purpose to incorporate the acquired
territory into the United States.    The joint resolution
annexing the Hawaiian Islands made them "a part of the
territory of the United States." 88
Congress executed the contracts of the treaties and the
joint resolution by extending its laws and the Constitution
to the territory and by erecting portions into States.34
Section 1891 of the Revised Statutes provides: "The
Constitution and all laws of the United States which
30 8 Stat. at L. 202; I U. S. Treaties and Conventions, 509.
31 New Orleans v. De Armas (1835) 9 Pet. 224, 235, 9 L. Ed.
109.
828 Stat. at L. 256 (Florida); 9 Stat. at L. 930 (Mexico); 15
Stat. at L. 542 (Alaska). See Magoon's Reports, pp. 41-45.
83 30 Stat. at L. 750; 31 Stat. at L. Ch. 339.
84 See Magoon's Reports, p. 43, for description. "The liberality
of Congress in legislating the Constitution into all our contiguous
territories has undoubtedly fostered the impression that it went
there by its own force, but there is nothing in the Constitution
itself, and little in the interpretation put upon it, to confirm that
impression." Downes v. Bidwell (1901) 182 U. S. 244, 286, 45 L.
Ed. 1088. Only Alaska and Hawaii are now outside the pale of
States. But the Constitution was expressly extended to Alaska
by Section 3, Act of Congress, August 24, 1912, 37 Stat. at L. Ch.
387; and to Hawaii by Section 5, Act of Congress, June 14, 1900,
31 Stat. at L. 141.
The historic debate on an amendment to a bill to extend the Constitution and certain laws of the United States over the proposed
territories of Utah and New Mexico, quoted by many authors, is
described by Senator Benton as follows: "The novelty and strangeness of this proposition called up Mr. Webster, who repulsed as
an absurdity and an impossibility the scheme of extending the




318


PHILIPPINE GOVERNMENT


are not locally inapplicable shall have the same force and
effect within all the organized territories, and in every
territory  hereafter organized   as elsewhere within the
United States."    The attitude of Congress is shown by
the words of Mr. Chief Justice Marshall in Loughborough v. Blake: 8    "The difference between requiring a
continent with an immense population to submit to be
taxed by a government having no commnon interest with
it, separated from   it by a vast ocean, restrained by no
principle of apportionment, and associated with it by
no common feelings, and permitting the representatives
of the American people, under the restrictions of our
Constitution, to tax a part of the society, which is in a
state of infancy, advancing to manhood, looking forward
to complete equality as soon as that state of manloo(l
shall be attained, as is the case with the Territories, is
too obvious not to present itself to the minds of all."
Again, in Shively v. Bowlby,36 the court said: "The Territories acquired by Congress whether by deed or cession
from  the original States, or by treaty with a foreign
Constitution to the territories, declaring that instrument to have
been made for states, not territories; that Congress governed the
territories independently of the Constitution and incompatibly with
it; that no part of it went to a territory but what Congress chose
to send; that it could not act of itself anywhere, not even in the
states for which it was made, and that it required an act of
Congress to put it in operation before it had effect any where.
Mr. Clay was of the same opinion, and added: 'Now, really I must
say the idea that, eo instanti, upon the consummation of the treaty,
the Constitution of the United States spread itself over the acquired
territory and carried along with it the institution of slavery, is so
irreconcilable with any comprehension or any reason I possess,
that I hardly know how to meet it. " Benton, Thirty Years in the
United States Senate, Vol. 2, p. 279.
s 5 Wheat. 317, 324, 5 L. Ed. 98 (1820).
86 152 U. S. 1, 57, 38 L. Ed. 331 (1894). See further Downes v.
Bidwell (1901) 182 U. S. 244 et seq., 45 L. Ed. 1088 et seq.;
Rasmussen v. U. S. (1905) 197 U. S. 516, 49 L. Ed. 862.




RELATIONS BETWEEN U. S. AND PHILIPPINES  319


country, are held with the object, as soon as their population and condition justify, of being admitted into the
Union as States upon an equal footing with the original
States in all respects."
There was always an expectation and intention which,
moreover, was always brought to fruition, that the acquired districts should become incorporated as integral
parts of the United States.    The Constitution and the
laws of Congress had full force by legislative extension.
~ 85. The doctrine of the insular cases.87-An entirely new and novel situation was presented after the
Spanish-American War.      Porto Rico, and with it the
Philippines, were so located and constituted as not to be
territory satisfactory for statehood or organized territorial government.    Furthermore, the treaty of peace
had created no such contract, but on the contrary had
strictly stipulated that "the civil rights and political status
of the native inhabitants of the territories hereby ceded
to the United States shall be determined by the Congress." The President of the American Peace Commission has said in explanation of this reservation: "It was
thus undertaken to give Congress, as far as the same
could be constitutionally done, a free hand in dealing
with these new territories and their inhabitants." 88
Judicial decisions to clear up the uncertainty as to the
position of the new acquisitions under the American Constitution were necessary. The Insular Cases, a group of
7 See generally the Insular Cases, 182 U. S., 45 L. Ed. 1041, and
printed together in a volume; Rowe, The United States and Porto
Rico, Ch. III; Willoughby on the Constitution, Chs. XXVIII, XXX;
Watson on the Constitution, Vol. II, pp. 1267-1281; J. C. McMahon,
A Critical Study of the So-called Insular Cases (unpublished thesis).
38 Address of Hon. William R. Day before the Michigan Bar
Association, May 23, 1900, p. 9, quoted in C. F. Randolph, Law
and Policy of Annexation, p. 20. Same language used by Mr. Day as
a Justice of the Supreme Court in Dorr v. U. S. (1904) 195 U. S.
138, 49 L. Ed. 128, 11 Phil. 706.




320


PHILIPPINE GOVERNMENT


cases arising in 1901, submitted this fundamental question
to the United States Supreme Court for resolution. The
Court in the two most important cases met the issue in
a rather singular manner. In each case the court gave
judgment by a vote of five to four. But in each case the
majority was shifted by the transference of the vote of
one judge. The arguments presented before the court
and the divergent opinions of its members were similar
in tenor to those in prior epoch-making cases concerning
the nature of the American constitutional system. They
also followed closely the debates of Webster, Clay, and
Calhoun. Four justices believed that the "Constitution
followed the flag," i. e., extended of its own force immediately and automatically by cession to the new territory, and four repudiated this theory and took the view
that the Constitution could only be so extended by an
Act of Congress." The opinion of the Court resulted
in the conclusion that when territory is annexed by the
United States it ceases to be foreign but does not become
completely domestic. Whether we agree with these decisions or not, it must be admitted that thereby Congress
and the President have been given valuable discretionary
power and have been permitted to inaugurate a new and
untraditional policy.
The first case, De Lima v. Bidwell,~ was an action to
recover duties paid under protest on sugars imported
from Porto Rico into the United States after the ratification of the treaty but before the passage of the Porto
Rican (Foraker) Act. The Court, through Mr. Justice
Brown, said that the case raised the single question
89 Magoon in his reports has proved with elaboration, by incidents from United States history, that the Constitution and laws of
the United States do not extend ex propio vigore over newly acquired
territory.
40 182 U. S. 1, 45 L. Ed. 1041 (1901). See in connection therewith
Cross v. Harrison (1853) 16 How. 164, 14 L. Ed. 889.




RELATIONS BETWEEN U. S. AND PHILiPPINES  321


whether territory acquired by the United States by cession
from a foreign power remains "a foreign country" under
the tariff law providing for duties upon articles "imported
from foreign countries." The Court answered with the
opinion that upon ratification of the treaty of peace
with Spain, Porto Rico ceased to be a foreign country,
and became territory of the United States, although not
an organized territory in the technical sense of the word.
Duties were no longer collectible upon merchandise
brought from the Island.
But if Porto Rico was not a foreign country, did the
converse, that it was a part of the United States within
the provision of the Constitution which declares that "all
duties, imposts, and excises shall be uniform throughout
the United States"-hold true? The case of Downes v.
Bidwell '4 attempted to settle this question. The Foraker
Act was now in operation and imposed duties on the
products of Porto Rico, but of a smaller per cent than
those required to be levied, collected, and paid upon like
articles of merchandise imported from foreign countries.
Did the revenue clauses of the Constitution extend of
their own force to the newly acquired territory? Mr.
Justice Brown, announcing the conclusion and judgment
of the Court, held that "the Island of Porto Rico is a
territory appurtenant and belonging to the United States,
but not a part of the United States within the revenue
clauses of the Constitution; that the Foraker Act is constitutional, so far as it imposes duties upon imports from
such Island, and that the plaintiff cannot recover back the
duties exacted in this case." (P. 287, L. Ed. p. 1106.)
The same Justice has since explained his position as being
"that the Constitution does not apply to territories acquired by treaty until Congress has so declared, and that
in the meantime, under its power to regulate the terri

41 182 U. S. 244, 45 L. Ed. 1088 (1901).
P. I. Govt.-21.




322


PHILIPPINE GOVERNMENT


tories, it may deal with them regardless of the Constitution, except so far as concerns the natural rights of their
inhabitants to life, liberty, and property." 2 Mr. Justice
White, with whom joined Mr. Justice Shiras and Mr.
Justice McKenna, and "in substance" Mr. Justice Gray,
in a concurring opinion generally conceded to be the more
authoritative and consistent, reached the general conclusion that it had been "indubitably settled by the principles
of the law of nations, by the nature of government
created under the Constitution, by the express and implied powers conferred upon that government by the
Constitution, by the mode in which those powers have
been executed from the beginning, and by an unbroken
line of decisions of this Court, first announced by
Marshall and followed and lucidly expounded by Taney,
that the treaty-making power cannot incorporate territory
into the United States without the express or implied
assent of Congress, that it may insert in a treaty conditions against immediate incorporation, and that on the
other hand, when it has expressed in the treaty the conditions favorable to incorporation they will, if the treaty
be not.repudiated by Congress, have the force of the law
of the land, and therefore by the fulfillment of such conditions cause incorporation to result. It must follow, therefore, that where a treaty contains no conditions
for incorporation, and, above all, where it not only
has no such conditions, but expressly provides to the
contrary, that incorporation does not arise until 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." (Pp. 338, 339, L. Ed. p. 1126.) Applied to the
Treaty of Paris, the concurring opinion said the result


4s Concurring opinion in Rasmussen v. U. S. (1905) 197 U. S. 516 -531, 49 L. Ed. 862-868.




IRELA\TIONS BETWEEN U. S. AND PHILIPPINES  323


was "that Awhile in an international sense Porto Rico
was not a foreign country, since it was subject to the
sovereignty of and was owned by the United States,
it was ioreign to the United States in a domestic sense,
because the Island had not been incorporated into the
United States, but was merely appurtenant thereto as
a possession."   (Pp. 341, 342, L. Ed. p. 1127.)       The
dissenting opini)on of Mr. Chief Justice Fuller, with
whoml concurred Justices Harlan, Brewer, and Peckham,
concluded with the opinion that "Porto Rico became, at
least after the ratification of the treaty with Spain, a part
of and subject to the jurisdiction of the United States
in respect of all its territory and people, and that Congress
could not thereafter impose any duty, impost, or excise
with respect to that Island and its inhabitants which
departed from   the rule of uniformity established by the
Constitution." (IP. 391, I. Ed. p. 1146.)
The Insular Cases have been criticized, but, nevertheless, have been followed in many cases since decided.
FIrom them we deduce ' that after the Treaty of Paris,
Porto Rico did not become a foreign country in an inter43Our own Supreme Court in U. S. v. Dorr (1903) 2 Phil. 269,
273, per Cooper J. says that the following conclusions are deducible
from the decision in Downes v. Bidwell:
"1. That Puerto Rico (to which the Philippines is equally situated) did not by the act of cession from Spain to the United States
become incorporated in the United States as a part of it, but became
territory pertaining to and belonging to the United States.
"2. That as to such territory Congress may establish a temporary
government, and in so doing it is not subject to all the restrictions.
of the Constitution.
"3. That the determination of what these restrictions are and
what particular provisions of the Constitution are applicable to such
territories involves an inquiry into the situation of the territory
and its relation to the United States.
"4. That the uniformity provided for in the revenue clause of
the Constitution is not one of those restrictions upon Congress in
its government of the territory of Puerto Rico."




324


PHILIPPINE GOVERNMENT


national sense, but Porto Rico did become foreign to
the United States in a domestic sense. Porto Rico did
not, by the act of cession from Spain, become incorporated into the United States as a part thereof, but Porto
Rico did become a possession appurtenant and belonging
to the United States.
~ 86. The power of Congress.-The United States
Supreme Court has used emphatic language in affirming
the "general," "plenary," "sovereign," "discretionary,"
"supreme" power of Congress, accredited representative
of American sovereignty, to govern the territories and
possessions.   Beginning with Chief Justice Marshall in
1810 who spoke of "Congress possessing and exercising
the absolute and undisputed power of governing and
legislating for the territory of Orleans" 4 down to the
last recorded pertinent case,45 such power residing in
Congress has never been disputed. As a matter of necessity until Congress can act, the President has the right
to issue orders for the government of acquired territory."  Thereafter, the government of the new territory
belongs "primarily to Congress, and secondarily to such
agents as Congress may establish." 47 Congress may
exercise its discretionary legislative functions over territories directly from  Washington or indirectly through
4Sere and Laralde v. Pitot (1810) 6 Cranch 332, 337, 3 L. Ed.
240.
4 See Benner v. Porter (1850) 9 How. 235, 242, 13 L. Ed. 119;
National Bank v. County of Yankton (1880) 101 U. S. 129, 133, 25
L. Ed. 1046, 1047; Murphy v. Ramsey (1884) 114 U. S. 15, 44, 29 L.
Ed. 47; Mormon Church v. U. S. (1889) 136 U. S. 1, 42, 34 L. Ed.
478; Boyd v. Thayer (1892) 143 U. S. 135, 36 L. Ed. 103; Simms
v. Simms (1899) 175 U. S. 162, 16S, 42 L. Ed. 115; Binns v. U. S.
(1904) 194 U. S. 486, 491, 48 L. Ed. 1087; U. S. v. Bull (1910) 15
Phil. 7. Also Kent's Commentaries 385; 38 Cyc. p. 200, note 39.
6 Cross v. Harrison (1853) 16 How. 164, 14 L. Ed. 889; In re
Allen (1903) 2 Phil. 630.
47 Snow v. U. S. (1873) 18 Wall. 317, 319, 21 L. Ed. 784.




RELATIONS BETWEEN U. S. AND PHILIPPINES  325


organized rule. It may legally transfer its power to a
local legislative body."4  As expressed in the Constitution,
the rules and regulations established by Congress for a
territory must only be "needful."      Since, however, the
question of what is "needful" is political and not judicial
in character, this is no practical limitation.     Congress
possesses the choice of forms and means.'
While of course conceded that the power vested in
Congress is thus of wide extent, yet it would not be
logical to suppose that it is without limitation.5 Even
if Congress, as has been decided, has the entire dominion
and sovereignty, national and local, Federal and State,
combining the powers of both the latter, still such complete and supreme authority must be modified by the
words "under the Constitution" and must at least be
subject to most, if not all, of the prohibitions on Congress
not to do certain things and others necessarily implied
therefrom.    No power of society over its members is
absolute.   "The theory of our governments, state and
national," says Mr. Justice Miller, "is opposed to the
deposit of unlimited power anywhere." 1          Numerous
cases have hinted at restrictions on Congress under the
Constitution.52
48Simms v. Simms (1899) 175 U. S. 162, 168, 42 L. Ed. 115;
Binns v. U. S. (1904) 194 U. S. 486, 491, 48 L. Ed. 1087; U. S. v.
Heinszen & Co. (1907) 206 U. S. 370, 385, 51 L. Ed. 1098.
49 U. S. v. Fisher (1804) 2 Cranch 358, 2 L. Ed. 304; McCulloch v.
Maryland (1819) 4 Wheat. 316, 4 L. Ed. 579.
50 Yet the words "without limitation" are found in U. S. v.
Gratiot (1840) 14 Pet. 526, 537, 10 L. Ed. 573, 578.
51 Loan Association v. Topeka (1875) 20 Wall. 655, 22 L. Ed.
455. See also Murphy v. Ramsey (1884) 114 U. S. 15, 29 L. Ed. 47.
62National Bank v. County of Yankton (1880) 101'U. S. 129,
133, 25 L. Ed. 1046; Murphy v. Ramsey (1884) 114 U. S. 15, 44, 29
L. Ed. 47, followed in Boyd v. Thayer (1892) 143 U. S. 135, 169, 36
L. Ed. 103; Hawaii v. Mankichi (1903) 190 U. S. 197, 47 L. Ed.
1016; Binns v. U. S. (1904) 194 U. S. 486, 491, 48 L. Ed. 1087;
Dorr v. U. S. (1904) 195 U. S. 138, 49 L. Ed. 128, 11 Phil. 706, etc.




326


PHILIPPINE GOVERNMENT


Mr. Justice Curtis in his historic Dred Scott opinion 58
stated the question thus: "If, then, this clause does contain a power to legislate respecting the territory, what
are the limits of that power?"-and answered thus: "In
common with all the other legislative powers of Congress,
it finds limits in the express prohibitions on Congress
not to do certain things; that, in the exercise of the
legislative power, Congress can not pass an ex post facto
law or bill of attainder; and so in respect to each of the
other prohibitions contained in the Constitution." This apparently overstates the true rule for in the Dorr case 64 the
Court after giving these same quotations declined to hold
that the constitutional right to trial by jury required
Congress to extend this system to ceded territory. The
Court said that the extent of the limitations "must be
decided as questions arise" and that "Until Congress shall
see fit to incorporate territory ceded by treaty into the
United States, we regard it as settled...  that
the territory is to be governed under the power existing
in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers
of that body as are applicable to the situation."   That
some of the limitations were not intended to operate
upon Congress in legislating for territories is shown by
the thirteenth amendment, providing that neither slavery
nor involuntary servitude shall exist "within the United
States or any place subject to their jurisdiction."   It
would have been superfluous to have appended the last
clause if the prohibitions applied to all territory a part
of or appurtenant to the United States.
3 Dred Scott v. Sanford (1856) 19 How. 393, 614, 15 L. Ed. 691,
787.
M195 U. S. 138, 49 L. Ed. 128, 11 Phil. 706 (1904). "Most, if
not all, the privileges and immunities contained in the bill of rights
of the constitution were intended to apply..."  Hawaii v.
Mankichi (1903) 190 U. S. 197, 47 L. Ed. 1016.




RELATIONS BETWEEN U. S. AND PHIIIIPPINES  327


The same vague uncertainty is found when we consider the argument that the people of the territory are
protected in their rights by forces anterior to the Constitution and above the Constitution.  In one case the
Court spoke of "essential principles upon which our system rests" 5 as restraining the power. In another case
much quoted, Mr. Justice Bradley said:       "Doubtless
Congress, in legislating for the territories, would be
subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and
its Amendments; but these limitations woiuld exist rather
by inference and the general spirit of the Constitution
fronm zwhich Congress derives all its powers, than by any
express and direct application of its provisions." b  Mr.
Magoon would direct attention:
"To the use by the Court of the expression 'formulated
by the Constitution,' rather than created, conferred, or
guaranteed by the Constitution, showing that the Court
had reference to 'fundamental limitations' on legislative
powers arising from the primal, inherent rights of men —
rights which do not arise from constitutional provisions
and antedate all governments, sucl as life, liberty, acquisition of property, formation of a family and begetting
offspring, and other rights of like character. Such rights
are not created or conferred by governments. They are
protected, maintained, and promoted by all just governments, and their exercise regulated and controlled, and
in proper individual instances taken away; but it is not
the right, it is the regulation which originates with government. When we undertake to consider such rights in
the abstract, we rise above constitutions and statutory
enactments and enter the realm of ethics, and must deal
s5 McAllister v. U. S. (1890) 141 U. S. 174, 35 L. Ed. 693.
5s Mormon Church v. U. S. (1889) 136 U. S. 1, 44, 34 L. Ed. 478.
See also Thompson v. Utah (1897) 170 U. S. 343, 349, 42 L. Ed.
1061.




328


PHILIPPINE GOVERNMENT


with the laws of civilization and the spirit engendered
by nineteen Christian centuries.
"All the powers of the government of the United
States are limited and controlled by these higher laws,
for the reason that the sovereign, i. e., the people of the
United States, recognize their controlling power, and
if an officer exercises his discretion in violation thereof,
the sovereign displaces him and secures an incumbent
whose discretion coincides therewith. Not even the Constitution is exempt." 67
Mr. Justice Brown in his opinion in the Insular Cases 68
mentioned certain natural rights as applying. He said:
"To sustain the judgment in the case under consideration, it by no means becomes necessary to show that
none of the articles of the Constitution apply to the
Island of Porto Rico. There is a clear distinction between
57 Magoon's Reports, p. 85.
58 182 U. S. 276, 277, 280, 282, 283, 291, 294, 45 L. Ed. 1088.
(1901), mentioned in Duarte v. Dade (1915) 13 0. G. 2006. Again
in concurring opinion in Rasmussen v. U. S. (1905) 197 U. S. 531,
49 L. Ed. 862. See Coudert, Certainty and Justice, pp. 89, 96.
John G. Carlisle in an address before the American Bar Association,
1902, said: "The distinction attempted to be taken between the
obligatory force of absolute prohibitions upon the power of Congress and the obligatory force of limitations and qualifications
imposed by the Constitution upon the exercise of its powers over a
particular subject, cannot, in my opinion, be sustained by any
sound process of reasoning. It is true that there is a difference
in degree between an absolute denial of all power to do a particular
thing and a grant of power to do that thing to a limited extent, or
in a prescribed manner only; but the absolute prohibition and the
express or implied limitation are equally obligatory upon Congress.
It is bound to obey both or its act is void.... To say that
Congress, in legislating for a territory, is not bound by the constitutional limitations upon a granted power, but is or may be
bound by the express prohibitions, is simply to assert that all parts
of the Constitution are not of equal force and effect as restraints.
upon legislation, and that a power not granted may be constitutionally exercised if it is not expressly prohibited, a theory, which,


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RELATIONS BETWEEN U. S. AND PHILIPPINES  329


such prohibitions as go to the very root of the power
of Congress to act at all, irrespective of time or place,
and such as are operative only 'throughout the United
States' or among the several states.
"There are certain principles of natural justice inherent
in the Anglo-Saxon character which need no expression
in constitutions or statutes to give them effect or to secure
dependencies against legislation manifestly hostile to their
real interests....  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 opinions and to a
public expression of them, or, as sometimes said, to
worship God according to the dictates of one's own
conscience; 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 ana
to 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. Of the latter
class are the rights to citizenship, to suffrage (Minor v.
Happersett, 21 Wall. 162), and to the particular methods
of procedure pointed out in the Constitution, which are
peculiar to Anglo-Saxon jurisprudence, and some of
which have already been held by the states to be unnecessary to the proper protection of individuals."
if sanctioned by the judiciary, would at once revolutionize the
government. It would no longer be a government of enumerated
and delegated powers, but would possess the whole mass of sovereign
power which is now vested in the people, subject only to the
comparatively few express prohibitions."




330


PHILIPPINE GOVERNMENT


This seems to be the thought of Mr. Justice White in
the same case, for he says:
"While, therefore, there is no express or implied
limitation on Congress in exercising.its power to create
local governments for any and all of the territories, by
which that body is restrained from the widest latitude of
discretion, it does not follow that there may not be
inherent, although unexpressed, principles which are the
basis of all free government which cannot be with impunity transcended. But this does not suggest that every
express limitation of the Constitution which is applicable
has not force, but only signifies that even in cases where
there is no direct command of the Constitution which
applies, there may nevertheless be restrictions of so
fundamental a nature that they cannot be transgressed,
although not expressed in so many words in the
Constitution.
"Undoubtedly there are general prohibitions in the
Constitution in favor of the liberty and property of the
citizen, which are not mere regulations as to the form and
manner in which a conceded power may be exercised,
but which are an absolute denial of all authority under
any circumstances or conditions to do particular acts. In
the nature of things, limitations of this character cannot
be under any circumstances transcended, because of the
complete absence of power."
President Woodburn of Indiana University, after mentioning the Insular Cases and quoting from the opinions,
continues:
"The rights of the people of the ceded Islands are
guaranteed... by what has been called the spirit
of the Constitution and its unwritten law. Custom, usage,
precedent, our political habits, public expectation, the
spirit of love of American liberty, the fundamental
principles on which the nation was founded and by which
it is guided,-all these are the forces to be relied upon to




RELATIONS BETWEEN U. S. AND PHILIPPINES  331


restrain the power of Congress in the government of the
territories. Congress is bound by all the past principles
and practices of the nation to secure all people subject to
its jurisdiction  against unreasonable  searches and
seizures; to accord the right to a speedy and public trial;
to prevent excessive bail; to prevent the establishment
by state authority of a state church; to prevent ex post
facto acts and bills of attainder; to prevent slavery except
in punishment for crime, and civil discriminations on
account of race or color. Congress is bound to defend
these rights for the people of the territories, not because
the people there can claim privileges under the Constitution but because the nation may not violate the fundamental principles on which the Constitution was made." 69
Mr. Root, when Secretary of War, said:
"The people of the ceded Islands have acquired a
moral right to be treated by the United States in accordance with the underlying principles of justice and
freedom which we have declared in our Constitution,
and which are the essential safeguards of every individual
against the powers of government, not because those provisions were enacted for them, but because they are
essential limitations inherent in the very existence of the
American government." 60
To the foregoing can be added the factors of humanity
enforced by public opinion. Mr. Chief Justice Marshall
says that:
"Humanity, acting on public opinion, has established
as a general rule that the conquered shall not be wantonly
oppressed, and that their conditions shall remain as
eligible as is compatible with the objects of the conquest.
Public opinion, which not even the conqueror
can disregard, imposes these restraints upon him, and he


s9The American Republic, pp. 381-391.
60 Report of Secretary of War, 1899.




332


PHILIPPINE GOVERNMENT


can not neglect them without injury to his fame and
hazard to his power." 61
Can any safe deductions be made from such halting
and contradictory judicial dicta? Only this: Congress
has almost plenary power over the territories. It may
delegate its functions to a local government. This power
of Congress is not without limitation. All privileges
and immunities of the Constitution, as the right to trial
by jury under the sixth amendment, are not fundamental
and so restrictive. Most prohibitions of the Constitution,
as those relating to religious worship, personal liberty
and individual property, freedom of speech and of the
press, free access to courts of justice, due process of law,
equal protection of the laws, unreasonable searches and
seizures, cruel and unusual punishments, ex post facto
laws, and bills of attainder, together with other moral
and natural rights, constituting the unwritten law outside
the Constitution, reinforced by public opinion acting in
the interest of humanity, undoubtedly are restrictions on
Congress, but must be resolved as each particular case
arises.62 As in the practical application of these rules
to the Philippines, Congress has expressly extended
thereto all of the basic principles of the American constitutional system, excepting the rights of trial by jury
and the bearing of arms, and as the former of these has
been decided adversely to the claimants, only the question
of whether or not the right to bear arms is fundamental
and restrictive would appear to be left for decision.
61Johnson v. McIntosh (1823), 8 Wheat. 589, 5 L. Ed. 681.
62 But that there are limitations on Congress outside the Constitution can not be absolutely accepted. Remember the words of
Chief Justice Marshall-"This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent,
and acknowledges no limitations other than are prescribed in the
Constitution." Gibbons v. Ogden (1824), 9 Wheat. 1, 6 L. Ed. 23.




RELATIONS BETWEEN U. S. AND PHILIPPINES  333


Fortunately also Congressional discretion has always
been exercised with an anxious regard for the rights of
the inhabitants of the territories.
~ 87. The right of the United States to admit the
Philippine Islands into the Union as a state, to cede
to a foreign power, or to declare independent.-These
three constitute the broad constitutional possibilities
open to the United States in dealing with the Philippine
Islands.  In considering them, let us recall:  1. That
the United States possesses the inherent and sovereign
right to acquire territory such as the Philippines.  2.
That Congress has almost unlimited power in governing
such territory. 3. That the Constitution grants to Congress the discretionary power to admit new states into
the Union (Art. IV, sec. 3). 4. That the Constitution
grants to the President, with the advice-and consent of
the Senate, the power to make treaties (Art. II, sec. 2).
5. That the Constitution contains no express provision
authorizing the United States to cede territory to a
foreign power or to declare territory independent. 6.
That on the other hand, as in the constitutions of some
other countries, the Constitution contains no express
provision forbidding alienation of territory.  7. That
as far as could be (lone thereby, the Treaty of Paris, a
part of the supreme law of the land, conferred the final
and exclusive power of determining the future of the
Philippines upon Congress by providing that "the civil
rights and political status of the native inhabitants of the
territories hereby ceded to the United States shall be detcrtmincd by the Congress" (Art. IX, par. 2). 8. That
in American Insurance Company v. Canter, Mr. Chief
Justice Marshall had said that if conquered territory "be
ceded by treaty the acquisition is confirmed, and the
ceded territory becomes a part of the nation to which it
is annexed, either on the terms stipulated in the treaty




334


PHILIPPINE GOVERNMENT


of cession, or on such as its new master shall impose." 6
9. That the President of the American Peace Commission, now a Justice of the Supreme Court, has said in
explanation of the reservation in the Treaty of Paris:
"It was thus undertaken to give Congress, as far as the
same could be constitutionally done, a free hand in dealing with these new territories and their inhabitants." 64
10. That the wishes of the inhabitants of the Philippine
Islands need not be consulted in settling these questions.
Under the Constitution, under sovereignty, under the
treaty of cession, and under political policy is a general
premise that the future of the Philippines, whatever it
may be, is given into the hands of Congress.         As the
other two departments, especially the judiciary to which
the question would have to be taken for redress, would
be loath to assume jurisdiction over what is so manifestly a legislative question of a political nature, this
statement is strongly re-enforced from the practical
standpoint. Let us, however, take up each phase of the
subject more specifically.
63American Insurance Co. v. Canter (1828) 1 Pet. 542, 7 L. Ed.
242.
64Address of Hon. William  R. Day before the Michigan Bar
Association, May 23, 1900, p. 9, quoted in C. F. Randolph, Law
and Policy of Annexation, p. 20. Same language used by Mr.
Day as a Justice of the Supreme Court, in Dorr v. U. S. (1904),
195 U. S. 138, 49 L. Ed. 128, 11 Phil. 706. See Rasmussen v. U. S.
(1905), 197 U. S. 516, 49 L. Ed. 862. "The clause at the end of the
Ninth Article of the Treaty with Spain of 1898 was inserted therein
for the sole purpose of giving to Congress the power to legislate
in that manner. The recent and present administrations of the
government of the United States have taken the position that under
such article Congress has plenary power to establish by legislation
the status of the inhabitants of Porto Rico, the Philippines and
other territory recently acquired." Butler, Treaty-Making Power
of the U. S., Vol. I, p. 281. Mabini, La Revolucion Filipina, p. 75,
also takes the position that Congress has absolute power to dispose
of the Philippines.




RELATIONS BETWEEN U. S. AND PHILIPPINES  335


The right of the United States to admit the Philippine
Islan-ds into the Union as a State.
This is a contingency which is unlikely to happen. The
United States has never committed or obligated herself
to giving the Filipinos imlne(iate or even ultimate statehood.    The American     people have never favored      incorporation of an alien people living at a great distance
into the family of states.65 The Filipino people, with the
decadence of the Federal Party, manifest no desire for
such a status.es
Legally considered, and that is solely our task, no valid
objection to the proceeding can be seen. The Federal
6 "I say you will never consent to make the Philippine Islands
an integral and organic part of the United States of America..  The objections to the plan are insuperable; the reasons
against it invincible; the hostility to it ingrained and ineradicable.
The grounds of this antipathetic attitude are fundamental and allembracing; they are physical, physiological, ethnological, historical,
psychological, social, and political." Philippine Affairs, A Retrospect
and Outlook, an address by Jacob Gould Schurman, President of
the First Philippine Commission, before the Members of Cornell
University, p. 88. U. S. Senators and Congressmen have publicly
opposed the incorporation of the Filipinos into the United States
as a state. See Kalaw, The Case for the Filipinos, p. 48.
66 "The international and constitutional right of the United States
to incorporate and admit the Philippine Islands into the sisterhood
of states once established, should the Philippines be so incorporated
into the United States? The question is an open one. The author,
however, is prepared to answer the question in the negative. And
naturally so, because born and reared under the tender care of this,
our mother country, and a living witness to her now past misfortunes and struggles against the tyranny and despotism of Spain,
the author would much prefer to see the Philippine Islands serving
an apprenticeship to liberty, taught the lessons of freedom, by
degrees raised to the enjoyment and practice of independence, and
ultimately brought to light as an independent and forever-free
'Pearl of the Orient,' trained in the knowledge of her own laws
and institutions, than for her personality to be absorbed, her laws,
customs, and traditions forgotten, consequent upon her becoming




336


PHILIPPINE GOVERNMENT


courts have often asserted that territory which comes
under the control of the United States is never supposed
to remain permanently in a territorial condition, because
this would be inconsistent with the basic idea of self-government. Indeed, in the Dred Scott case, Mr. Justice
Taney went so far as to announce the doctrine that territory could be acquired for no other purpose than to be
converted into states.7 However doubtful this theory
may be, there is no disputing the fact than in other later
cases, such as the Insular Cases, the United States Supreme Court has recognized that the Philippines could
be incorporated into the United States when Congress
shall see fit, and that they might "be introduced into the
sisterhood of states." 68 But even such authority is una state of the American Union. Nor will such incorporation, in
the mind of the author, be an act calculated to subserve in any
degree the interests of the American people, for obvious geographical, racial, social, and political reasons. It must be borne in mind,
however, that the question is not grounded upon the policy or impolicy, or upon the desirability or undesirability of the incorporation,
but upon the right, the constitutional right of the United States
to incorporate the Philippine Islands into the Union of the United
States, should such incorporation be deemed wise by the joint action
of the American and Filipino peoples. The sole question, therefore,
is Should the Filipino people so desire, could the United States,
legally and constitutionally, incorporate the Philippine Islands into
the Union of the United States? The constitutional history of the
State of Louisiana answers the query in the affirmative." Laurel,
What Lessons May Be Derived by the Philippine Islands from the
Legal History of Louisiana, II Philippine Law Journal, August,
1915, pp. 8, 25. "Statehood for the Philippines is not desirable,
either from the standpoint of the American or from that of the
Filipino people. Differences in race, customs, interests, and the
thousands of miles of water which separate both countries, are insurmountable obstacles to Philippine statehood...  The idea
of statehood does not appeal to the Filipinos."  Commissioner
Quezon in Kalaw, The Case for the Filipinos, pp. 178, 179.
67 Dred Scott v. Sandford (1857), 19 How. 393, 446, 15 L. Ed. 691.
68 Downes v. Bidwell (1901), 182 U. S. 244, 283, 45 L. Ed. 1088;




RELATIONS BETWEEN U. S. AND PHILIPPINES  337


necessary, for the Constitution expressly grants to
Congress the power to erect new states out of acquired
territory to be received into the Union.u In this respect
the power of Congress is without restriction. If, therefore, Congress should decide to take such a step for the
Philippines, it would naturally first make them a regularly
organized, incorporated territory. It could then pass an
enabling act prescribing the conditions for admission.
The constitution, although meeting these requirements,
could thereafter be changed by the new        state.   The
Philippines would necessarily be admitted on an equal
footing with the other states.
The right of the United States to cede the Philippine
Islands to a foreign power.
This, likewise, is a possibility which is unlikely to be
'seriously considered. The American people would never
countenance the sale of the Philippines to another power,
as Japan; public opinion would condemn such a coldblooded transaction as incompatible with national honor;
religious bodies would strongly oppose the proceeding;
and the United States would lose commercially thereby
with no reciprocal gains.70 The Filipino people would
Dorr v. U. S. (1904), 195 U. S. 138, 49 L. Ed. 128, 11 Phil. 706;
Rasmussen v. U. S. (1905), 197 U. S. 516, 49 L. Ed. 862.
69 See Coyle v. Smith (1911), 221 U. S. 559, 55 L. Ed. 853.
70"The suggestion has been made that, in return for some compensation, the Islands might be handed over to Japan; but though
this has seemed to some persons an excellent way for the Americans
to escape from an embarrassing dilemma, in reality the idea is preposterous. Religious sentiments may not play in the political world
so great a part as they once did, but it requires a stretch of the
imagination to suppose that Christian-America would hand over
some seven million fellow-Christians against their will to the rule
of any non-Christian nation, however enlightened." Coolidge, The
United States as a World Power, pp. 166, 167. "Only one probable
purchaser has so far been suggested-Japan. What would be the
P. I. Govt.-22.




338


PHILIPPINE GOVERNMENT


stoutly resist being bartered off like chattels, would decry
the transfer as a breach of faith in handing over a
Christian people to one not Christian, and would regard
it as a dastardly betrayal of American trust.71 The revolt
against Spain was not for the purpose of coming under
effect upon American industry if the Philippines should fall into
the hands of Japan?... If the Islands should be sold to
Japan, or are otherwise acquired by her, she could at once make
the hemp industry a government monopoly, and increase the export
duty to as high a point as would be possible without curtailing consumption. This could produce increased revenue which would be
ample to take care of interest and sinking fund of a bond issue to
purchase the Islands, and eventually might lead to the extinguishment of certain industries in the United States, and usurpation of
their markets by hemp products manufactured in Japan..
What might happen, in respect to sugar, if Japan should take the
Philippines? Is it not reasonable to suppose that Japanese labor
would be imported to till the plantations, and that sugar refineries
of Japan, which already enjoy the protection of government monopoly, would get a further advantage over the American sugar
industry in competing in the world's market?..     There is
one moral factor attached to a sale of the Islands which many
persons apparently have overlooked; the ethical difficulty involved
in turning over a Christian people to be governed by a pagan power;
which probably will be the fate of these Islands should the United
States ever, for any reason, entirely cast them  loose."  Millard,
America and the Far Eastern Question, pp. 484, 485. Oscar F.
Williams, An Imperial Dicker, 54 Ind. Apr. 17, 1902, p. 903, suggests a trade with Great Britain; the same magazine, Vol. 64, Feb.
27, 1908, p. 475, asserts that the Philippines are not for sale; but
it harks back to the old idea of a trade with Great Britain in an
article by Edwin E. Slosson, Why Not Swap the Philippines for
Something Nearer Home? Vol. 85, Feb. 28, 1916, p. 301.
71 "But aside from considerations of history and religion, the
peaceable transfer of the Philippines to any one without the consent
of the inhabitants is now barely conceivable. The people have too
much national self-consciousness, and they have been treated too
long as intelligent beings with a right to take part in shaping their
own destinies, for them to be calmly bartered off like cattle.  The
public conscience in America would never permit such a transaction
and there is no real indication that the Filipinos would prefer any




RELATIONS BETWEEN U. S. AND PHILIPPINES 339


the dominion of the United States. The Filipinos do not
wish for liberation from the United States in order to
belong to some other power. No country so far as known
has ever signified a desire to purchase the Philippines
from the United States.
Probably the most authoritative statement on the question by reason of the place and the man was that of Hon.
William H. Taft, when as Secretary of \Var, in an address at Tokio, Japan, on September 30, 1907, he said:.
"It (the government of the Philippines) is a task full
of difficulty and one of which many Americans would
be glad to be rid.   It has been suggested that we might
relieve ourselves of this burden by a sale of the Islands
to Japan or some other country.        The suggestion is
absurd.   Japan does not wish the Philippines.    She has
problems of a similar nature nearer home.       But, more
than tllis, the United States could not sell the Islands to
another power without the grossest violation of its obligation to the Philippine people. It must maintain a government of law    and order and the protection of life,
liberty and property itself or fit the people of the Islands
other foreign rule. They did not revolt against Spain for the
purpose of coming under the United States, and they are not
hoping for liberation from the dominion of the United States in
order to belong to some other power under whom they might
easily fare worse. \What the discontented elements demand is
liberty to manage their own affairs, and the mere suggestion that
their country is regarded as salable property is enough to excite
their legitimate anger."  Coolidge, The United States as a World
Power, p. 167. "While Japan is an enlightened nation and while
the traditions of the American people discountenance any tendency
to religious discriminations, she being a heathen nation and America
a Christian nation, the latter should not hand over to the former the
destiny of eight million Christian souls." Javier Gonzalez, The
Neutrality of the Philippines, 5 Cultura Filipina, May, 1915, p. 79.
Read also Aguinaldo's protest of June 10, 1898, against a rumored
sale of the Philippines to Great Britain, quoted in note 29 to sec.
67 supra.




340


PHILIPPINE GOVERNMENT


to do so and turn the government over to them. No
other course in honor is open to it." 72 At the inauguration of the Philippine Assembly a little later, he explained
his thought more fully as follows:
"Before discussing the Assembly, I wish to give attention to one report that has been spread to the four corners
of the globe, and which, if credited, might have a pernicious effect in these Islands. I refer to the statement
that the American government is about to sell the Islands
to some Asiatic or European power. Those who credit
such a report little understand the motives which actuated
the American people in accepting the burden of this
government. The majority of the American people are
still in favor of carrying our Philippine policy as a great
altruistic work. They have no selfish object to secure.
There might be a grim and temporary satisfaction to
those of us who have been subjected to severe criticism
for our alleged lack of liberality toward the Filipino
people and of sympathy with their aspirations, in witnessing the rigid governmental control which would be
exercised over the people of the Islands under the colonial
policy of any one of the powers to whom it is suggested
that we are about to sell them; but that would not excuse
or justify the gross violation, by such a sale, of the
implied obligation which we have entered into witl the
Filipino people. That obligation presents only two alternatives for us-one is a permanent maintenance of a
popular government of law and order under American
control, and the other, a parting with such control to the
people of the Islands themselves after they have become
fitted to maintain a government in which the right of all
the inhabitants to life, liberty and property shall be secure.
I do not hesitate to pronounce the report that the government contemplates the transfer of these Islands to any


73 Printed in Taft, Present Day Problems, pp. 57, 58.




RELATIONS BETWEEN U. S. AND PHILIPPINES  341


foreign power as utterly without foundation.  It has
never entered the mind of a single person in the government reslonsille for the administration.  Such a sale
must be the subject of a treaty, and the treaty power in
the Government of the United States is exercised by the
President and the Senate, and only upon the initiative
of the President. Hence an Executive declaration upon
this subject is more authoritative than an Executive
opinion as to probable Congressional action." 78
Again turning to the legal phases, no valid objection
to a cession of the Philippines can be seen. Of course,
it is true that there is no express provision of the Constitution authorizing a transfer of territory in the possession
of the United States to another power. No precedent
can be pointed to in which the United States alienated
territory indisputably its own to another country. But
neither was there an article in the Constitution authorizing acquisition of territory, and neither was there a
precedent when Louisiana was purchased, but yet acquisition is recognized as an inherent attribute of the American government.   If sovereignty permits the United
States to secure additional domain, conversely the same
correlative right of sovereignty must permit the United
States to dispose of its territory. If the President can
initiate a treaty to annex territory and the Senate can
approve the treaty, obviously the President and the Senate can, by the same means, cede territory. While acquisition is naturally more pleasing to imperialistic patriotism than cession, the latter is legally just as constitutional. The higher law of national expediency, benefits,
or necessity must govern the dealings of one country with
another. As the United States Supreme Court has said:
"It certainly was intended to confer upon the government


73 Printed in Taft, id., pp. 32, 33.




342


PHILIPPINE GOVERNMENT


the power of self-preservation." 7        lWhat other great
nations have done the United States can do.75
Since as yet merely an academic question decisive
authority is lacking. One line of cases has suggested
that the authorization of the state within which the ter7s Legal Tender Cases (1871), 12 Wall. 457, 20 L. Ed. 287. "The
treaty power is in a measi:r-e incidental to the war power, and
under the necessity for national preservation, or even for national
benefit, many things can be done that are not explicitly enumerated
in the constitution." Devlin, The Treaty Power Under the Constitution of the United States, pp. 140, 141.
75 "The right of sovereign powers to cede territory to, and to
acquire territory from, other sovereign powers, with the accompanying transfer of sovereignty thereover, is one of the elementary
principles of international law. It is essential, however, that the
contracting powers should be fully sovereign in order to act either
as transferrer or transferee."  Butler, Treaty-Making Power of
the United States, Vol. I, p. 72. "There is a presumption against
the propriety of alienating national territory, and this is generally
conclusive where the territory has been deliberately acquired, or
long occupied, or, above all, where it is identified with the rest of
the country through national unity and community of interest.
These considerations are not pertinent in the case of the Philippines.
At the outbreak of the war with Spain the American people neither
wished nor expected to annex the Islands, and, whatever personal
expectations of aggrandizement may have lurked behind the plan
of campaign in the East, the Administration, though it will not
plead ignorance of a probable opportunity, maintains that aggrandizement was not intended.
"The constitutions of some countries forbid any alienation of
territory...   Generally, and invariably among the stronger
nations, with the right to acquire land there is, logically, a right to
cede it. And voluntary cession is not unexampled: Witness the
cession of Louisiana by France to the United States, of Alaska by
Russia to the United States, of Java and Heligoland by Great Britain to Holland and Germany respectively, of St. Bartholomew by
Sweden to France.... Each country determines for itself the
procedure in regard to cession. Some constitutions, that of France
among them, require treaties of cession to be submitted to the
legislature. The Judicial Committee of the Privy Council is strongly
of the opinion that the treaty-making body of Great Britain-the




RELATIONS BETWEEN U. S. AND PHILIPPINES  343


ritory is situated would have to be obtained before cession of political jurisdiction can be made to a foreign
power.76   As other authorities have refuted the theory,
the stand is made stronger for territory like the Philippines which is not within the boundaries of any state.7
But this question is beyond the point as to the Philippines.
Neither is the argument of Mr. Justice White in Downes
v. Bidwell applicable, because that concerned territory
which is "an integral part of the United States," and the
Philippines have been held by the United States Supreme
Court to be an unincorporated territory-thereby conceding, in a way, that because of their status the Philippines might be sold or traded.7"    Moreover, in the same
Crown in Council-has full power to cede territory, and this seems to
be justified by common precedent; nevertheless, in 1890, the Crown
asked the consent of Parliament before ceding Heligoland to
Germany." C. F. Randolph, Law and Policy of Annexation, pp. 144
et seq.
76 See Fort Leavenworth R. R. Co. v. Lowe (1885), 114 U. S.
525, 29 L. Ed. 264; Geofroy v. Riggs (1890), 133 U. S. 258, 33 L.
Ed. 642.
77 See Lattimer v. Poteet (1840), 14 Pet. 4, 10 L. Ed. 328; Kent's
Commentaries, Vol. I, p. 167, note (b); Willoughby on the Constitution, Vol. I, pp. 512, 513.
78182 U. S. 244, 315, 45 L. Ed. 1088, 1117 (1901)-in which it
is said: "In conformity to the principles which I have admitted it is
impossible for me to say at one and the same time that territory
is an integral part of the United States protected by the Constitution, and yet the safeguards, privileges, rights, and immunities which
arise from this situation are so ephemeral in their character that
by a mere act of sale they may be destroyed. And applying this
reasoning to the provisions of the treaty under consideration, to
me it seems indubitable that if the treaty with Spain incorporated
all the territory ceded into the United States, it resulted that the
millions of people to whom that treaty related were, without the
consent of the American people as expressed by Congress, and
without any hope of relief, indissolubly made a part of our common
country.
"Undoubtedly, the thought that under the Constitution power to




344


PIIILIPPINE GOVERNMENT


series of cases, Mr. Justice Brown remarked that when
territory is "once acquired by treaty, it belongs to the
United States, and is subject to the disposition of Condispose of people and territory, and thus to annihilate the rights
of American citizens, was contrary to the conceptions of the Constitution entertained by Washington and Jefferson. In the written
suggestions of Mr. Jefferson, when Secretary of State, reported to
President Washington in March, 1792, on the subject of proposed
negotiations between the United States and Spain, which were intended to be communicated by way of instruction to the commissioners of the United States appointed to manage such negotiations,
it was observed, in discussing the possibility as to compensation
being demanded by Spain 'for the ascertainment of our right' to
navigate the lower part of the Mississippi, as follows:
"'We have nothing else' (than a relinquishment of certain claims
on Spain) 'to give in exchange.  For as to territory, we have
neither the right nor the disposition to alienate an inch of what
belongs to any member of our Union. Such a proposition therefore
is totally inadmissible, and not to be treated for a moment.' Ford's
Writings of Jefferson, Vol. 5, p. 476.
"The rough draft of these observations was submitted to Mr.
Hamilton, then Secretary of the Treasury, for suggestions, previously to sending it to the President, some time before March 5, and
Hamilton made the following (among other) notes upon it:
"'Page 25. It is true that the United States have no right to
alienate an inch of the territory in question, except in the case of
necessity intimated in another place? Or will it be useful to avow
the denial of such a right? It is apprehended that the doctrine
which restricts the alienation of territory to cases of extreme
necessity is applicable rather to peopled territory than to waste and
uninhabited districts. Positions restraining the right of the United
States to accommodate to exigencies which may arise ought ever to
be advanced with great caution.' Ford's Writings of Jefferson, Vol.
5, p. 443.
"Respecting this note, Mr. Jefferson commented as follows:
"'The power to alienate the unpeopled territories of any state is
not among the enumerated powers given by the Constitution to
the general government, and if we may go out of that
instrument and  accommodate to exigencies which    may arise
by alienating the unpeopled territory of a state, we may accommodate ourselves a little more by alienating that which




RELATIONS BETWEEN U. S. AND PHILIPPINES  345


gress." 79  But again the question before the court in the
Insular Cases does not directly decide the point under
consideration for the Philippines.     We gain a little light
when w\e find that several treaties concerning boundary
disputes have surrendered areas claimed by the United
States to foreign powers, even going so far as to make
use of words of cession.80 Outside of this we also find
is peopled, and still a little more by selling the people
themselves. A shade or two more in the degree of exigency is all
that will be requisite, and of that degree we shall ourselves be
the judges.  However, may it not be hoped that these qeustions
are forever laid to rest by the 12th Amendment once made a part
of the Constitution, declaring expressly that "the powers not
delegated to the United States by the Constitution are reserved
to the states respectively?"  And if the general government has
no power to alienate the territory of a state, it is too irresistible
an.argument to deny ourselves the use of it on the present occasion.'
Ibid.
'The opinions of Mr. Jefferson, however, met the approval of
President Washington.
"True, from the exigency of a calamitous war or the necessity
of a settlement of boundaries, it may be that citizens of the United
States may be expatriated by the action of the treaty-making power,
impliedly or expressly ratified by Congress.
"But the arising of these particular conditions cannot justify
the general proposition that territory which is an integral part
of the United States may, as a mere act of sale, be disposed of."
79 De Lima v. Bidwell (1901), 182 U. S. 1, 196, 45 L. Ed. 1041,
1056.
80"Art. III of the Adams-de Onis Treaty of 1819 with Spain
(U. S. Tr. and Con. 1889, p. 1016) after describing the then
boundary line west of the Sabine River to the Pacific Ocean concludes as follows (p. 1017):
"'The two high contracting parties agree to cede and renounce
all their rights, claims and pretensions, to the territories described
by the said line that is to say: The United States hereby cede to His
Catholic Majesty, and renounce forever, all their rights, claims, and
pretensions, to the territories lying west and south of the abovedescribed line; and, in like manner, His Catholic Majesty cedes
to the said United States all his rights, claims, and pretensions to
any territories east and north of the said line, and for himself, his




346


PHILIPPINE GOVERNMENT


legislative opinion, judicial dicta, and text-book conclusion. Thus when the Federal Constitution was before
the convention of the State of Virginia for ratification,
Governor Edmund Randolph, opposing a proposed
amendment regulating treaties ceding, contracting, restraining, or suspending the territorial rights or claims
of the United States, said: "There is no power in the
Constitution to cede any part of the territories of the
United States." 81 But when the treaty for the Louisiana
purchase was before Congress, Mr. Nicholson, speaking
for the administration, said:     "The territory was purchased by the United States in their confederate capacity,
and may be disposed of by them at their pleasure." 82
Again in the case of Geofroy v. Riggs which set forth the
doctrine as to the consent of a state being a prerequisite
to cession, it was admitted that "with these exceptions,
it is not perceived that there is any limit to the questions
which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country." 83
heirs, and successors, renounces all claim to the said territories
forever.'
"By this treaty the United States renounced, or ceded, a large
tract which included the whole Texas, as well as a great deal of the
Mexican Territory which was ceded to the United States by the
Treaty of Guadalupe Hidalgo in 1848 after the Mexican war."
Butler, Treaty-Making Power of the United States, Vol. 2, pp. 192
et seq.
81 See Snow, The Administration of Dependencies, p. 470.
82 Annals of Congress, 1803-4, p. 471, quoted in Magoon's Reports,
p. 78.
83 133 U. S. 258, 33 L. Ed. 642 (1890). "Similar expressions
may be found in many cases in which, while the treaty-making
power has never been accurately defined, the wide field that it
covers is fully recognized.... The national government,
being invested with the powers that appertain to independent
nations, may, in dealing with foreign nations, exercise such powers
as may be necessary for the maintenance of its independence and
security." Devlin, The Treaty Power Under the Constitution of
the United States, pp. 137, 138.




RELATIONS BETWEEN U. S. AND PHILIPPINES  347


Again when Edward Everett, then Governor of Massachusetts, confidentially asked the opinion of Mr. Justice
Story concerning a resolution of the Massachusetts Legislature, in which it was declared that no power delegated
to the Constitution of the United States authorized the
government to cede to a foreign nation any territory lying
within the limits of a state of the Union, Mr. Justice
Story in his reply recalled a conversation previously had
on the subject with Mr. Chief Justice Marshall.      "He
was," said   Mr. Justice Story, "unequivocally of the
opinion, that the treaty-making power did extend to
cases of cession of territory, though he would not undertake to say that it could extend to all cases; yet he did
not doubt it must be construed to extend to some." 84
Finally a strong argument could be put forth predicated
on the clause of the Constitution, empowering Congress
"to dispose of" territory.  Although other corroborative
authority could be cited, it would seem more logical and
consistent to base the right of the United States to
alienate unincorporated territory on the fundamental
principle of sovereignty, re-enforced to an extent by the
very fact that territory in this position is not yet a part of
the United States.
If the Philippines should be ceded to a foreign power,
which as said is unlikely, the proper procedure would be
by treaty. If the treaty were accomplished by the two
high parties, a citizen could with difficulty restrain ful84 See Life and Letters of Joseph Story, Vol. II, pp. 286-289,
quoted in 5 Moore, International Law Digest, p. 172. Among other
authorities, Mr. Randolph said: "Outlying territory the Federal
Government is as free to cede, as to acquire without the express
consent of the states. As I have found no legal objection to our
treaty-making body annexing land without the consent of the
House of Representatives, I find none to its ceding land of its own
motion." C. F. Randolph Law and Policy of Annexation, pp. 144,
148. See generally Willoughby on the Constitution, pp. 507 et seq.




348


PHILIPPINE GOVERNMENT


fillment. If perchance the question could be brought
before the courts, a strong, and it is believed a convincing,
argument could be put forward for the affirmative of the
question.
The right of the United States to declare the Philippine
Islands independent.85
Unlike the other two possibilities which we have discussed, this is the contingency most likely to take place.
The great majority of the American people, while differing as to dates and methods, have looked forward to an
independent existence for the Philippines. It was the
President of the first Philippine Commission who said:
"The destiny of the Philippine Islands is not to be a state
or territory in the United States of America, but a daughter republic of ours —a new birth of liberty on the other
side of the Pacific, which shall animate and energize those
lovely Islands of the tropical seas, and, rearing its head
aloft, stand as a monument of progress and a beacon
of hope to all the oppressed and benighted millions of the
Asiatic continent." 86 Public opinion as represented by its
electoral delegates has crystalized into an official American policy.87 The Congress of the United States has
formally declared the purpose of the United States to
make the Philippines ultimately independent.      Public
opinion in the Philippines as represented by the press
and in popular assemblies has protested again and again
the desire of the Filipino people for independence. Their
accredited representatives, the Philippine Assembly and
8 See generally Willoughby id., various citations, and 178 No.
Am. Rev., Aug. 1904, p. 282, "Can Congress Constitutionally Grant
Independence to the Filipinos?" I. "It can." II. "It cannot."
86 Philippine Affairs, A Retrospect and Outlook, an address by
Jacob Gould Schurman, President of the First Philippine Commission, before the members of Cornell University, p. 87.
87 See sec. 79, supra.




RELATIONS BETWEEN U. S. AND PHILIPPINES 349


the Resident Commissioners to the United States, have
solemnly and unequivocally so stated by resolution, petition, and address. It was Speaker Osmefia who on
the occasion of the closing of the first Philippine Assemibly said: "Permit me, gentlemen of the Chamber, to
declare solemnly before God and before the world, upon
my conscience as a deputy and representative of my compatriots, and under my responsibility as president of this
Chamber, that we believe the people- desire independence,
that it (the Philippines) believes itself capable of leading
an orderly existence, efficient both in internal and external affairs, as a member of the free and civilized nations." Thus with the two peoples most vitally concerned
meeting on a common ground and with no third people
likely to interfere, independence for the Philippine Islands
would seem to be on the high road to accomplishment.
Once again, turning to the legal phases of the question,
no valid objection to the United States declaring the Philippine Islands to be a free and independent republic can
be seen. Like the other points we have discussed, it is
true that tlhere is no provision in the Constitution which
authorizes the United States to withdraw its sovereignty
from territory once acquired and to erect thereon another
sovereign entity. No previous action identical to what
would take place if the Philippine Islands were recognized
as independent can be found in the historical records of
the United States. Either territory was retained, or as
in the case of Cuba, the government of the United States
was merely an intermediary between two principals, taking something from one and handing it over to the other.
When we endeavor to resolve the question by means
of authority, we gain little additional light. As before
remarked, Mr. Justice Taney expressed the view in the
Dred Scott case 88 that territory is acquired to become
88Dred Scott v. Sandford (1857), 19 How. 393, 15 L. Ed. 691.
See sec. 82 supra, note 12, and Magoon's Reports, pp. 81 et seq.




350


PHILIPPINE GOVERNMENT


a state of the Union which, of course, conversely means
that territory is not acquired in order to be relinguished
for independent existence. One should, however, recollect in connection with this case that it went upon the
assumption that the right to acquire territory is derived
from the power to admit states, that this is the only case
in which this proposition has ever been accepted, and
that it is counter to the opinions of Marshall and a long
list of jurists and has since been judicially ignored-remembering all this, the language of Taney whether
dictum or not loses its force. The most authoritative expression of judicial opinion on the other side is that of
Mr. Justice Brown in the Insular Cases where he suggests that the Philippines and Porto Rico "might be permitted to form independent governments." 89
Careful analysis reaching back to other settled constitutional doctrines are here preferable. If, therefore, the
United States can acquire or cede territory without express constitutional authority, why can not the same sovereign power, which permits of such action, likewise
permit unincorporated territory to be made independent?
What difference is there between cession to another foreign power and cession to another people temporarily
under American control?   If the United States could by
treaty pass on the boon of freedom to Cuba, why can it
not a few years later under the power reserved by the
same treaty to Congress, pursuant to this power, hand
over a similar right to the Philippines? If the freeing of
the Philippines is deemed wise from the standpoint of
national necessity, or advantage, or for reasons which
take into consideration benefits to the Filipino people,
89Downes v. Bidwell (1901), 182 U. S. 244, 283, 45 L. Ed. 1C88.
"Should the alienation be by the way of granting independence to
a particular territory, as, for example, Porto Rico or the Philippine Islands, this could be done by joint resolution." Willoughby
on the Constitution, Vol. I, p. 513.




RELATIONS BET WEEN U. S. AND PHILIPPINES  351


what individual citizen can be heard to complain?  If
other sovereign powers can recognize former portions of
their territory as independent, because forced to do so,
why can not the United States as a power of equal rank
recognize the Philippines as a republic, because she wishes
to (1o so? And if Congress or its agent, the President,
shall recognize the Philippines to be a sovereignty, how
long on such a political question would a litigant have
standing in a court?  Plain answers to these interrogatories, if the premises be conceded, must, by a logic inexorable and final, lead to an affirmative conclusion. And
the premises, it is believed, can not be undermined.
It is respectfully submitted that the United States
has a legal and constitutional right to admit the Philippine Islands into the Union as a state, or to cede the
Philippine Islands to a foreign power, or to declare the
Philippine Islands independent.
~ 88. Application to constitutional relation of the
Philippines to the United States.-Direct application
of all the constitutional principles here stated to the situation of the Philippines can be made. It is settled that1. The United States, as a sovereign power, and as
necessary and proper to the carrying out of the express
constitutional powers to declare war and to make treaties,
had the legal right to acquire the Philippines by treaty.
2. The United States, as a consequence of the power
to acquire territory, as a result of the fact that the territory is not within the jurisdiction of any particular state,
and as a power delegated to Congress by the Constitution,
has the legal right to govern the Philippines.
3. The power to govern the Philippines rests with
Congress which can exercise the same directly or through
a local government. This power, while of wide extent,
is not unlimited and is restrained by certain fundamental
constitutional prohibitions which go to the root of the




352


PHILIPPINE GOVERNMENT


power of Congress to act at all, and by certain other moral
and natural rights, outside of the Constitution.
4. While up to the Spanish-American War, treaties of
cession had shown a purpose to incorporate territory into
the United States, eventually leading to statehood, the
treaty of peace with Spain contained no such executory
provision as to the Philippines, but left future disposition
to Congress.
5. While likewise up to the Spanish-American War
the Constitution and the laws of Congress had been extended to the territories by law, the Constitution and
Acts of Congress did not ex proprio vigore have force in
the Philippines and were not sent there by Act of Congress.
6. The Philippine Islands are not in the nature of a
foreign country in their-relation to the United States.
Neither did the Philippines on annexation become an
integral part of the United States.
7. The United States has a legal and constitutional
right to admit the Philippine Islands into the Union as a
state, or to cede the Philippine Islands to a foreign power,
or to declare the Philippine Islands independent.
Numerous cases concerning the Philippines, as will be
seen later, have followed, applied, and expanded these
propositions.
~ 89. Congressional control.-The same general
principles have been followed in the action taken by
Congress for the administration of the territories. The
Northwest Ordinance and the act for the government of
Louisiana were the models. Subsequent legislation was
only modified to apply to new conditions. One is not
surprised to find such Congressional Acts following the
general lines of state governments, this being the form
most familiar to Congress and apparently deemed most




RELATIONS BETWEEN U. S. AND PHILIPPINES  353


suitable. Congress could, however, prescribe a different
form if it so chose.90
In practice, Congress has not adopted a policy of petty
interference with the territories and the insular administration in the Philippines. The Islands are practically
removed from the field of Congressional action. As Mr.
Chief Justice Chase in the course of an opinion, in which
he described the territorial governments, said: "The theory upon which the various governments for portions of
the territory of the United States have been organized,
has ever been that of leaving to the inhabitants all the
powers of self-government consistent with the supremacy
and supervision of national authority, and with certain
fundamental principles established by Congress." 91
Congress in exercising its authority directly over territories and over the Philippines can, of course, nullify or
change what it has created. "Congress may not only
abrogate laws of the territorial legislatures, but it may
itself legislate directly for the local government. It may
make a void act of the territorial legislature valid, and a
valid act void." 9u
In the Philippine Bill it was provided "That all laws
passed by the Government of the Philippine Islands shall
be reported to Congress, which hereby reserves the power
and authority to annul the same." 98 With a slight change
in phraseology, the Philippine Autonomy Act continues
the same idea.9* This does not mean that Acts of
the Philippine Legislature are suspended until approved by Congress. On the contrary, the uniform
0O Binns v. U. S. (1904), 194 U. S. 491, 48 L. Ed. 1087.
91 Clinton v. Englebrecht (1872) 13 Wall. 434, 441, 20 L. Ed. 659.
92 First National Bank v. County of Yankton (1879) 101 U. S. 129,
25 L. Ed. 1046.
98 Act of Congress, July 1, 1902, sec. 86.
93a Act of Congress, August 29, 1916, sec. 19.
P. I. Govt.-23.




354


PHILIPPINE GOVERNMENT


policy "4 since the establishment of the government of the
United States has been to regard enactments of territorial
legislatures as having full force, until they have been expressly or impliedly annulled by an appropriate Act of
Congress. Acts of the Philippine Legislature, therefore,
are valid acts, until disapproved by Congress or held invalid by the Courts.
Still, what is important is, that Congress possesses the
right of legislative veto.
~ 90. Presidential control.-The President of the
United States possesses executive control over both the
civil government of the Philippines and the military
forces in the Islands. He retains the first by virtue of the
power of appointment and removal and the enforcement
of the positive provisions of the laws. The President as
commander in chief of the Army and Navy likewise retains superior authority over the military organizations
in the Philippines.  The Governor-General is responsible 95 for his administration to the people of the United
States through the President. The Commanding General
is responsible 96 for his administration in the Philippines
through the Secretary of War to the President.
Further than this, whether or not the President has veto
power over all Acts passed by the Philippine Legislature
is a moot question. Some have argued that the Clief
Executive does possess this right as one retained by the
President in his Instructions to the Commission, since
confirmed by Congress, and never relinquished.97 Others'
94See Miners Bank v. Iowa (1851) 12 How. 1, 13 L. Ed. 867; U.
S. v. Bull (1910) 15 Phil. 7, 29; Op. Judge Advocate General, Sept.
30, 1909; 26 Op. Atty. Gen. U. S. 91, 97, quoted with approval in
Gromer v. Standard Dredging Co. (1912) 224 U. S. 362, 371, 56
L. Ed. 801.
96 Severino v. Governor-General (1910) 16 Phil. 366.
96 Tan Te v. Bell (1914) 27 Phil. 354.
97 Published Opinion of Judge L. M. Southworth in the Manila
Press.




RELATIONS BETWEEN U. S. AND PHILIPPINES  355


have contended that the Chief Executive does not possess
this right, because the veto power of the President is one
of constitutional grant, and, being of such a nature, it
can not be exercised where the Constitution is not in
force, as in the Philippines; the veto power of the President is, by express declaration of the Constitution, made
applicable only to the Acts of Congress, and inasmuch as
the Acts of the Philippine Legislature are not Acts of
Congress, said right can not be exercised over the Acts of
the Philippine Legislature; the Government of the Philippine Islands is an agency of Congress, and it is therefore
Congress alone that can determine what laws must be
permitted in the Philippines; and finally, the President
has a mere executive control over the Insular Government and such control does not necessarily include the
authority to set aside an enactment of the legislature,
unless expressly authorized by law to do so.98 Whihever
be the correct view, the President has never attempted to
exercise this prerogative. He only acts when the law so
requires; as for instance pursuant to sections nine and ten
of the Philippine Autonomy Act which makes his approval
necessary before bills relating to the public lands, timber,
mining, the tariff, immigration, and the currency can
become laws. The President also is the final arbiter in
case of appeal of the Philippine Legislature from a veto
by the Governor-General.
Here again, as in connection with Congressional control, what is important is not the activity of the President
but the fact that he possesses the right of executive supervision.
98 Thesis of Vicente del Rosario entitled "Has the President
of the United States Veto Power over the Acts Passed by the
Philippiie Legislature?" submitted for the degree of Bachelor of
Laws from the University of the Philippines.




356


PIIILIPPINE GOVERNMENT


~ 91. The Bureau of Insular Affairs.99-Both the
Attorney-General of the Philippine Islands and the Attorney-General of the United States have definitely held
that "the Government for the Philippine Islands should
be regarded as a branch of the War Department." 100 Cabinet officials other than the Secretary of War, as for instance the Postmaster-General, in an attempt to issue
orders to the Bureau of Posts of the Philippine Islands,101
have no authority over the Government of the Islands.
Exceptions are the Secretary of the Treasury who
through the United States Public Health Service has control over the Bureau of Quarantine Service and the Coast
and Geodetic Survey of the United States which directs
the work of the Bureau of Coast and Geodetic Survey.l~a'
All other regulations from Washington of whatever sort
pass through the War Department. "From the time the
United States forces first took possession of these Islands
down to the present time, the President of the United
States appears to have exercised such powers as he possessed and as it was found necessary to exercise, as Commander in Chief of the Army and Navy, in the Islands,
99 See Annual Reports, Chief, Bureau of Insular Affairs; Reports,
Secretary of War, especially 1901; Testimony, General McIntyre,
Chief, Bureau of Insular Affairs, before the Committee on the
Philippines, U. S. Senate, 63d Congress, 3d sess., p. 5; C. R. Edwards, former Chief of the Bureau of Insular Affairs, The Work of
the Bureau of Insular Affairs, XV National Geographic Magazine, pp. 239-255, 273-284; Memorandum, War Department, Mar.
4, 1914; Willoughby, Territories and Dependencies of the United
States, pp. 321, 322.
10024 Op. Atty. Gen. U. S. 534; 4 Op. Atty. Gen. P. I. 205; Op.
Atty. Gen. P. I. Apr. 22, 1914.
1014 Op. Atty. Gen. P. I. 205 confirmed in 4 Op. Atty. Gen.
P. I. 377 and 5 Op. Atty. Gen. P. I. 538; 24 Op. Atty. Gen. U. S.
534; 29 Op. Atty. Gen. U. S. 380.
10la Administrative Code of the Philippine Islands, secs. 937, 938,
1152.




RELATIONS BETWEEN U. S. AND PHILIPPINES  357


through the War Department and through the Secretary
of War, and not through the Secretary of the Treasury.102  The Secretary of War is also granted certain
positive powers as the right to make final decision on
appeals from   the rulings of the Insular Auditor, confirmed by the Governor-General.0~2   The Philippine Autonomy Act would permit the President to place the Philippine Government under some department other than
the War Department, if he so elected.
To assist the Secretary of War in administrative supervision of the Insular Possessions there was early created a
Division of Insular Affairs.103  The Philippine Bill, continuing the Division as "the Bureau of Insular Affairs of
the War Department," provided that "the business assigned to said Bureau shall embrace all matters pertaining
to civil government in the island possessions of the United
States subject to the jurisdiction of the War Department." 104 The Chief of the Bureau of Insular Affairs is
appointed by the President for a period of four years;
while holding office he has the rank and pay of a brigadier-general.l~4' Two assistants, one with the rank of
colonel and the other of major, are detailed to the Bureau. 14b
The Bureau of Insular Affairs thus has some resemblance to colonial departments as existing in foreign governments. Its oversight extends to the purely civil ad102In re Allen (1903) 2 Phil. 630, 636; Adm. Code, sec. 75.
102a Philippine Autonomy Act, secs. 24, 25.
10 See Report, Secretary of War Root, 1901.
10 Act of Congress, July 1, 1902, sec. 87. Ex. Or. of the President placed Porto Rico under the supervision of the Bureau of Insular Affairs.
1a Act of Congress, June 25, 1906, 34 Stat. at L. 456.
1"bAct of Congress, March 2, 1907, 34 Stat. at L. 1162; Act
of Congress March 23, 1910, 36 Stat. at L. 248. See U. S. Comp.
St. 1913, Tit. 6, Ch. C.




358


PHILIPPINE GOVERNMENT


ministrations in the Philippines and Porto Rico; formerly
to Cuba and Santo Domingo. It furnishes the President,
the Secretary of War, Congress, and the public with information as to the Philippines and Porto Rico. A former Assistant Chief of the Bureau gives other duties as
follows:
"The Bureau constitutes the official repository of information concerning these dependent people and its Chief
advises and consults with the Secretary of War regarding
all Federal matters affecting our island possessions. Most
of the legislation proposed in Congress is prepared or suggested by the Bureau and submitted by the Secretary of
War.... The financial operations of these governments, especially the Philippines, place a direct responsibility upon the War Department, first, in floating
bond issues; second, in guarding their deposits in this
country; and third, in purchasing supplies which are required by the Government and either unobtainable in
Manila and San Juan or only at prohibitive prices..
In its relation to the appointive personnel of the Philippine
Government the Bureau, upon the recommendation usually of the Governor-General or Bureau primarily concerned, selects all but the highest officials who are appointed in the United States."105
Insofar as the Bureau of Insular Affairs and the War
Department have anything to do with policies, the aim
"has been to foster autonomous governments in the
Islands subject to its jurisdiction, to avoid interference
with the governments there established, and to protect
such governments insofar as possible from interference
by other departments and branches of our government."106
105 Remarks of Major Hunt, U. S. A., before the Lake Mohonk
Conference, Oct. 23, 1910, pp. 162, 163.
106 Memorandum, War Department, Mar. 4, 1914.




RELATIONS BETWEEN U. S. AND PHILIPPINES  359


~ 92. Resident commissioners to the United
States. 07-The Philippine Bill provided for two Resident Commissioners to the United States to be chosen at
the first meeting of the Philippine Legislature, which
actually occurred in 1907. These positions were created
to offset the control of the President and Congress by
giving the Filipino people representation in the United
States. The Philippines in this respect were placed in the
category of territories.
To be eligible for the position of Resident Commissioner, a person must be a qualified elector of the Islands,
owing allegiance to the United States, thirty years of age
or over, and able to read and write the English language.
They are chosen by the Assembly and the Senate voting
separately.108 This method results in practice in the lower
house selecting one Commissioner and the upper house
the other. In case of vacancy the Governor-General appoints until the next meeting of the Philippine Legislature. The term of office was first two years, later changed
to four years beginning with March 4, 1913, and now
by the Philippine Autonomy Act fixed at three years beginning with March 4, 1917, and trienially thereafter.
The salary is made the same as that for the Resident Commissioner from  Porto Rico-$7,500.00 (P15,000) per
annum-with provision for a similar sum for stationery,
mileage, and clerk hire, as allowed the members of the
House of Representatives, with the franking privilege
also enjoyed by members.l~ These moneys come out of
107 See Act of Congress, July 1, 1902, sec. 8; Act of Congress, Feb.
15, 1911, sec. 2; Administrative Code of the Philippine Islands,
secs. 120-122; Philippine Autonomy Act, sec. 20.
108 Procedure prescribed in Joint Resolution No. 2, Nov. 22, 1907;
Adm. Code, sec. 122.
10 Act of Congress, May 22, 1908, sec. 1, in connection with
Act of February 26, 1907; Annual Appropriation Acts of Congress;
Philippine Autonomy Act, sec. 20.




360          PHILIPPINE GOVERNMENT
the Treasury of the United States. The Philippine Legislature also provides for a private secretary for each of
the Resident Commissioners, a portion of whose salaries
are paid out of Insular funds.11
The law entitles a Resident Commissioner to official
recognition by all departments of the United States. The
Commissioners have also a seat in Congress and the right
there to be heard but not to vote. Their larger function
has naturally been to voice the needs and aspirations of
the Filipinos before Congress, before the President, and
before the American public.
110 Act 1802 and annual Appropriation Acts.




RELATIONS BETWEEN U. S. AND PHILIPPINES 361


Representative Authorities.
Westel Woodbury Willoughby, Constitutional Law of
the United States (1910), Vol. I, chs. XXII-XXV,
XXVIII-XXXI.
David K. Watson on the Constitution (1910), Vol. II,
pp. 1255 et seq.
Magoon's Reports (1900), pp. 37-157.
John Bassett Moore, International Law Digest (1906),
Vol. I, pp. 429-611.
Willis Fletcher Johnson, A Century of Expansion
(1903).
Charles A. Gardiner, Our Right to Acquire and Hold
Foreign Territory (1899).
Leo Stanton Rowe, The United States and Porto Rico
(1904).
Alpheus S. Snow, The Administration of Dependencies
(1902), pp. 458-473, 538, 539.
Annual Reports, Chiefs Bureau of Insular Affairs.
U. S. Statutes at Large.
American Insurance Company v. Canter (1828), 1 Pet.
511, 7 L. Ed. 242.
Mormon Church v. U. S. (1890), 136 U. S. 1, 34 L.
Ed. 478.
The Insular Cases, 182 U. S. 1, 45 L. Ed. 1041, and
printed together in a volume.
Philippine Autonomy Act of August 16, 1916.




CHAPTER 7.


THE STATUS OF THE PHILIPPINES.1
~ 93. Status of other non-contiguous territory of the United States.
94. Whether the Philippines are a foreign country.
95. Whether sovereign or semi-sovereign.
96. Whether a state or territory of the United States.
97. Whether a colony, dependency, or possession.
98. Whether part of the United States in an international sense.
99. The case of United States versus Bull.
100. Whether legally organized.
101. Whether Filipinos are aliens, subjects, or citizens.
102. Status stated.
~ 93. Status of other non-contiguous territory of
the  United    States. ---The mainland      included   within
the boundaries of the United States proper is now made
up of States, and the District of Columbia, specially created for the national capital. Outside of this compact
territory are other units not States related in some manner
to the national government.
Taking these up in order of nearness to the constitutional relation, there is Alaska for many years an unorganized but incorporated district or territory recently
made into an organized territory of the United States.2
Hawaii is likewise technically an incorporated organized
1 Originally appeared in XIV Michigan Law Review, May, 1916,
p. 529.
laSee generally 38 Cyc. 192-197; Bryce, The American Commonwealth, Rev. Ed., Vol. II, Ch. XCVII.
2 See  Willoughby,  Territories  and  Dependencies  of  the
United States, pp. 74-78; Coquitlam  v. U. S. (1895), 163 U.
S. 346, 41 L. Ed. 184; Rasmussen z. U. S. (1904), 197 U. S. 516,
362




THE STATUS OF THE PHILIPPINES


363


territory.'  Porto Rico differs from     Alaska and Hawaii
in that while substantially an organized territory it is
not fully   incorporated   into  the  United   States.    The
United States Supreme Court has said of the present
status of Porto Rico: "It may be justly asserted that
Porto Rico is a completely organized territory, although
not a territory incorporated into the United States, and
that there is no reason why Porto Rico should not be
held to be such a territory." 4
49 L. Ed. 862; Interstate Commerce Commission v. Humbolt Steamship Co. (1911), 224 U. S. 474, 56 L. Ed. 849; Act of Congress,
Aug. 24, 1912, 37 Stat. at L. Ch. 387, p. 512.
3 See McKinley, Island Possessions of the United States, Ch.
VII; Willoughby, Territories and Dependencies of the United
States, pp. 60-70; 31 Stat. at L. Ch. 339; Hawaii v. Mankichi (1903),
190 U. S. 197, 47 L. Ed. 1016; Kawananakoa v. Polyblank (1906),
205 U. S. 349, 51 L. Ed. 834.
New York ex rel. Kopel v. Bingham    (1908), 211 U. S. 468,
476, 53 L. Ed. 286. "Porto Rico is substantially a territory of the
United States, over which all the general laws of Congress properly
applicable to territories, and not in terms locally inapplicable, are
in full force and effect...     It would appear that Porto
Rico is in fact more of an organized territory than some of the
older jurisdictions, because it has what no other territory, save
Hawaii, has; that is, a separate court of the United States, presumably to enforce United States laws as a part of its jurisdiction,
wholly distinct from the local insular courts, which form a complete
and ample local system in themselves." Peck Steamship Line v.
New York, etc., Steamship Co. (1906), 2 Porto Rico Fed. 109,
129. See to same effect Elkins v. People (1909), 5 Porto Rico
Fed. 103, 111; 23 Op. Atty. Gen. U. S. 634; Municipality of Ponce
v. Roman Catholic Church (1907), 210 U. S. 296, 52 L. Ed. 1068;
American Ry. v. Didricksen (1913), 227 U. S. 145, 57 L. Ed. 456;
Porto Rico v. Rosaly (1913), 227 U. S. 270, 273, 57 L. Ed. 507.
But the Federal Court of Porto Rico, in a later case, after stating
that "the position of Porto Rico has been gradually evolved by a
series of decisions" and admitting that "it is true that the Supreme
Court has on more than one occasion referred to Porto Rico as,
for some purposes, a territory," continued: "These decisions, however, must be taken not as establishing any particular rule which was




364


PHILIPPINE GOVERNMENT


Passing from    the territories we find Cuba a foreign
country, a free and independent Republic with a written
not before the Court, but as limited to the facts of the particular
case. Porto Rico, apart from its not being incorporated into the
United States, and being, unlike technical territories, an island at
a distance from the mainland of the United States, is not organized
on the basis of the technical territories heretofore known." The
conclusion then was that: "Upon the whole, Porto Rico is much
more in the nature of a dependent state external to the United
States, and corresponding to what are called possessions of the
British Crown rather than to a technical territory of the United
States." Fajardo Sugar Co. v. Richardson (1913), 6 Porto Rico
Fed. 224.
"The organic act of 1913 provides that the government of the
Island shall be vested in an executive, consisting of a governor
and six heads of administrative departments, a legislature of two
houses-the executive council, and a house of delegates-and a
system of courts of justice, consisting of a territorial court having
the jurisdiction of the United States Circuit and District Courts,
and a Supreme Court of Porto Rico, with such inferior courts as
the local legislature may from  time to time create.  The most
characteristic feature of this government is the manner in which
the members of the executive council, or upper house, are selected,
and the powers given to that body. The law thus provides that
the executive council shall be composed of eleven members, six of
whom shall be the heads of the administrative departments, all,
like the Governor, to be appointed by the President by and with
the advice and consent of the Senate, for a term of four years. Not
less than five of the eleven members must be native Porto Ricans.
The members of the lower house, thirty-five in number, are selected
every two years by what is practically manhood suffrage.  The
result of these provisions is to establish about as even a balance
of power in the legislature between the Americans and the natives
of the Island as can well be secured, though the veto power possessed
by the Governor throws the final determination as to what legislation shall be enacted into American hands...    Throughout
the year the executive council also sits in what is called executive
session for the transaction of a large amount of important business.
These duties were conferred upon it, partly by the organic act,
and partly by laws enacted by the insular legislature. Among the
most important of these duties are those of acting as a public utilities
commission for the granting of all franchises and concessions of a




THE STATUS OF THE PHILIPPINES


365


constitution, but in effect a protectorate of the United
States.5 The Isle of Pines is also a "foreign country,"
public character, and of prescribing the rates and conditions of
service that shall be observed by public service corporations; of
administering the election laws; of acting as the approving body
in respect to the sale of bonds by municipalities, or the granting
of loans to these bodies from the insular treasury; of authorizing
certain readjustments in the budget as enacted by the legislature;
and of approving nominations to office made by the Governor..
Congress gave the government full power to take all action necessary for the management of the local affairs of the Island, subject
only to the right of Congress to disapprove of legislation if it saw
fit. It likewise relieved it from all administrative control from
Washington further than is contained in the power of the President
to remove persons appointed by him for cause, and in the obligation of the Governor and the heads of departments to make
annual reports regarding the manner in which they have discharged
their duties...     As regards representation  in  Congress,
Porto Rico has been treated as a territory, its citizens being directed
to elect every two years a commissioner or delegate who has a
seat in the House of Representatives, with the right to be heard
but not to vote." W. F. Willoughby, Cyc. of American Government,
Vol. II, pp. 758-760. See further Rowe, The United States and
Porto Rico; McKinley, Island Possessions of the United States,
Chs. IV, V; Willoughby, Territories and Dependencies of the United
States, Chs. IV, V; The Insular Cases (1901), 182 U. S. 1, 45 L.
Ed. 1041.
Elbert J. Benton, International Law and Diplomacy of the
Spanish-American War, pp. 288-291; C. F. Randolph, 1 Columbia
Law Review, p. 352; Colquhoun, Greater America, pp. 267, 268;
McKinley, Island Possessions of the United States, Ch. III; Neely
v. Henkel (1900), 180 U. S. 109, 45 L. Ed. 448; Goodyear Tire and
Rubber Co. v. Rubber Tire Wheel Co. (1908), 164 Fed. 869. A
provision, known as the Platt amendment, was inserted in the
army appropriation bill of March 2, 1901, directing the President
to leave the control of the Island to its people as soon as a government should be established under a constitution which defined the
future relations with the United States substantially as follows:
"I. That the government of Cuba shall never enter into any
treaty or other compact with any foreign power or powers which
will impair the independence of Cuba, nor in any manner authorize
or permit any foreign power or powers to obtain by colonization




366


PHILIPPINE GOVERNMENT


de facto under the jurisdiction of the Republic of
Cuba.6
or for military or naval purposes or otherwise, lodgment in or
control over any portion of said Island.
"II. That the said government shall not assume or contract any
public debt, to pay the interest upon which, and to make reasonable
sinking fund provision for the ultimate discharge of which, the
ordinary revenues of the Island, after defraying the current expenses
of the government shall be inadequate.
"III. That the government of Cuba consents that the United
States may exercise the right to intervene for the preservation of
Cuban independence, the maintenance of a government adequate
for the protection of life, property, and individual liberty, and for
discharging the obligations with respect to Cuba imposed by the
Treaty of Paris on the United States, now to be assumed and
undertaken by the government of Cuba.
"IV. That all acts of the United States in Cuba during its military
occupancy thereof are ratified and validated, and all lawful rights
acquired thereunder shall be maintained and protected.
"V. That the government of Cuba will execute, and as far as
necessary extend, the plans already devised or other plans to be
mutually agreed upon, for the sanitation of the cities of the
Island.
"VI. That the Isle of Pines shall be omitted from the proposed
constitutional boundaries of Cuba, the title thereof being left to
future adjustment by treaty.
"VII. That to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as
for its own defense, the government of Cuba will sell or lease to
the United States lands necessary for coaling or naval stations at
certain specified points to be agreed upon with the President of the
United States.
"VIII. That by way of further assurance the government of
Cuba will embody the foregoing provisions in a permanent treaty
with the United States."
The Cuban constitutional convention adopted the Platt amendment,
June 12, 1901, and added it as an appendix to the constitution. The
treaty embodying the provisions of the Platt amendment was concluded May 22, 1903, and ratifications exchanged July 1, 1904. 31
Stat. at L. 897, 898; Foreign Relations, 1904, p. 243; John Halladay
Latane, America as a World Power, pp. 179, 180, 181, 189.
6 Pearcy v. Stranahan (1906), 205 U. S. 257, 51 L. Ed. 793.




TIHE STATUS OF THE PHILIPPINES                 367
Samoa, Guam, and the Panama Canal Zone are held
for special purposes.   The portion of Samoa, principally
the Island of Tutuila, assigned by treaty with Great Britain and Germany to the United States, is a naval station
with   all governmental powers       in  the  hands   of the
commna    nant.7  Guam    similarly is under military government with the naval officer in command as chief
executive in complete control.8 The Panama Canal Zone
7 Willoughby, Territories and Dependencies of the United States,
pp. 290-302.  The system  of local government erected by Commander Tilley and his successors, has been based upon the family
and tribal organizations already existing among the Samoans.
Concerning his governmental policy Commander Tilley said: "I
considered that the best way to govern these people was to let
them, as far as possible, govern themselves, by continuing their
good and time-honoured customs and gradually abolishing the bad
ones. The Samoans are still in the patriarchal state; and the head
of the household is supreme ruler of his own little family, and 
these chiefs in turn form a council which governs each village.
Each town is practically independent of the others, though there is
a parliament or 'fono' for every district...   I followed the
plan which has proved so successful in Fiji of appointing native
chiefs as local magistrates or governors in each district." McKinley,
Island Possessions of the United States, pp. 269-276.
8 Forbes-Lindsay, America's Insular Possessions, Vol. I, pp. 225,
226; McKinley, Island Possessions of the United States, pp. 276 -279; Willoughby, Territories and Dependencies of the United
States, pp. 302, 303. Ex. Or. of the President of Dec. 23, 1898,
placing Guam under the control of the Department of the Navy
and the "Instructions for the military commander of the Island
of Guam" issued by the Secretary of the Navy on Jan. 12, 1899,
are quoted in part in Duarte v. Dade (1915), XIII O. G. 2006.
"For administrative purposes the Island is divided into four
counties, each represented by a resident native commissioner appointed by the Governor. His powers are confined to police jurisdiction with authority to try, as Justice-of-the-Peace, a certain
class of criminal cases of minor gravity.  The more important
cases are tried in the Island Court, also presided over by a native
judge who sits in Agafia. Appeals lie to this Court from the
Justices' Courts and, in certain cases, from the Island Court to the
Court of Appeals of the Island. The Island Court is the same as




368             PHILIPPINE GOVERNMENT
is a specially organized government for the Panama
Canal.9
existed under Spanish domination, under the title of Court of First
Instance, and is similar in jurisdiction to the present courts of that
name in the Philippines. The Court of Appeals, as at present
constituted, is a creation of my own. Under the Spanish, appeals
from the Court of First Instance in Guam lay to the Audicncia
in Manila,-Guam then belonging to the political division of the
Filipinas. With the entire independence of Guam under the United
States, and in the absence of all regulation by law of Congress,
the earlier American Governors constituted a Supreme Court
to consist of the Governor himself. The time had come and the
material was available to form a Court of natives, five in all with
an Americanized Spaniard (living permanently in the Island and
married to a native), as Chief Justice. This has now been in
successful operation for about six years...   The Spanish
law prevails, modified by the decrees, not numerous, of the several
Governors.  Congress has never legislated for Guam  except to
include in the appropriation bills certain items for the Naval Station. The President, in 1899, issued a short Executive Order
covering the Customs Tariff for the Island and in 1901 another
defining the accountability for insular funds. The last law regulating
the tariff between the Philippine Islands and the United States
included Guam. These are the only legal restraints emanating from
the Government on the action of the Island administrator. Neither
has the Navy Department issued special regulations to limit or
control or advise his course. He is bound to observe the Naval
Regulations but, as a matter of fact, he is the most independent
official I know of and possesses, practically, the power of a benevolent despot over an absolutely helpless people.... In addition to the Judges the other native officials are the Island Attorney,
who is also the Prosecuting Officer, Registrar of Lands, Deeds
and Titles, and the Custodian of the Commercial Register; the Island
Treasurer and assistants; the Clerk of the Courts; the Warden of
the jail, who is also the County Commissioner of Agafia County.
The Naval Surgeons are the Sanitary Inspectors. The Commissioner of Schools is an American, as is the Collector of Customs.
The school-teachers are both Americans and natives of both sexes.
The Island officials, and all public improvements not made for
the efficiency of the Naval Station as such, are paid from the
revenues of the Island." Address of Commodore George L. Dyer,
before the Lake Mohonk Conference, Oct. 21, 1910, pp. 156, 157.
The Panama Canal Zone was acquired from the Republic of




THE STATUS OF THE PHILIPPINES


369


The minor possessions of the United States, Wake
Island, Midway Islands, Howland Island, Baker Island,
and the Guano Islands, are practically uninhabited.
The foregoing impresses one with the variety of relationships within and to the United States-States; a district for the capital; incorporated, organized territories;
an unincorporated, organized territory; a virtual protectorate; naval governments; a canal government; and no
government at all. Large as is the list, the Philippines
are included in no division.
~ 94. Whether the Philippines are a foreign country.-Mr. Chief Justice       Marshall and     Mr. Justice
Story have defined a foreign country as one exclusively
within the sovereignty of a foreign nation, and without
the sovereignty of the United States.10 Applied in the
Insular Cases n Porto Rico was held not to be a foreign'
country after the cession.
In the Diamond Rings case 12 an identical question
arose relative to the Philippines.     The United States
Supreme Court found no distinction in this particular
between the situation of Porto Rico and the Philippines.
After the ratification of the treaty of peace, the Court
Panama by treaty of November 18, 1903, 33 Stat. at L. 2234. The
title of the United States thereto was judicially sustained in the
case of Wilson v. Shaw (1909), 204 U. S. 24, 51 L. Ed. 351. The
Zone is now governed by Act of Congress of August 24, 1912.
See Willoughby, Territories and Dependencies of the United
States, pp. 303-306; Albert Bushnell Hart, Cyclopedia of American
Government, Vol. I, pp. 218, 219.
10The Adventure (1812), I Brock, 235, Fed. Cas. No. 93; The
Eliza (1813), 2 Gall. 4, Fed. Cas. No. 4,346; Taber v. U. S. (1839),
1 Story 1, Fed. Cas. No. 13,722; De Lima v. Bidwell (1901), 182
U. S. 1,180, 45 L. Ed. 1047.
11 De Lima v. Bidwell, see sec. 85, supra.
12183 U. S. 176, 46 L. Ed. 138 (1901). Followed in U. S. v.
Heinszen & Co. (1906), 206 U. S. 370, 51 L. Ed. 1098, and in Faber
v. U. S. (1911), 221 U. S. 649, 55 L. Ed. 897.
P. I. Govt.-24.




370


PHILIPPINE GOVERNMENT


said, the Philippines "ceased to be a foreign country."
The Attorney-General of the United States later rendered
an opinion to the same effect.'a
The Philippine Islands are not a foreign country.
~ 95. Whether sovereign or semi-sovereign.-Although not a foreign country, we find the Government of
the Philippine Islands exercising powers which, prior to
the Spanish-American War, had vested either in foreign
states or in the Federal government exclusively.         To
particularize, the government of the Philippine Islands
levied a custom tariff on goods, wares, and merchandise
coming from    the United States into the Philippines; its
own exports entering the United States were likewise
taxed; it still has separate tariff and internal revenue
laws; it issues its own currency; it has a distinct postage
and controls its own postal service; it has extradition
rights; it has entered into postal money order agreements
and parcel post conventions with other governments.14
18"... The question is, whether the Philippine Islands are a
'foreign country' within the meaning of said Section 14. I am of the
opinion that they are not...
"That the territory ceded to the United States by the treaty
with Spain is not 'foreign' territory, within the meaning of the
tariff laws, was conclusively settled by the Supreme Court of the
United States in De Lima v. Bidwell, 182 U. S. 1, 196. By the
tariff act in force when the cession was made it was provided that
'there shall be levied, collected and paid upon all articles imported
from foreign countries' certain duties therein specified. The question was whether certain cargoes of sugar shipped from Porto Rico
were subject to duty; and the Court held, as expressed in the
syllabus, that 'with the ratification of the treaty of peace between
the United States and Spain, April 11, 1899, the Island of Porto
Rico ceased to be a 'foreign country, within the meaning of the
tariff laws.'" XXVIII Ops. 422. Also same holding in XXV Ops.
179.
144 Op. Atty. Gen. P. I., 205, 377; Adm. Code, sec. 1158. The
power to negotiate and conclude money-order and parcel-post conventions or agreements with foreign governments, which shall cover




THE STATUS OF THE PHILIPPINES


371


Hon. Charles E. Magoon, in a scholarly address before
the Patria Club of the city of New York, on February
19, 1904, speaking on the subject "What followed the
Ilag in the Philippines," said:
"No integral or segregated portion of the territory
sullject to the sovereignty of the United States is to-day
exercising by itself and for itself so many of the powers
of sovereignty as is the Philippine Archipelago. It is
zcell-nigh a sovereign nation, lacking complete independence in that it is not at liberty to exercise its judgment
and discretion in matters affecting its relations with foreign governments, and that its exercises of legislative
authority are subject to the disapproval of Congress. It
is accurate and exact to say that the people of the Philippines govern themselves, and that the only political right
enjoyed by citizens of the states and denied to them is
the right to participate in the government of the states of
The Union." As since Judge Magoon made these remarks over twelve years have elapsed, crowded with one
governmental change after another, all leading to absolute Filipino self-government, how much stronger would
his statement be of present conditions.
the mail and money-order service between the Philippine Islands
and  such  foreign  governments, resides, not in  PostmasterGeneral, but in the Government of the Philippine Islands. 29 Op.
Atty. Gen. U. S. 380. It should be remembered, in this connection,
that the Universal Postal Money Convention was between "the
United States of America and the island possessions of the United
States of America" and other countries. It has been held that
under its present status the Government of the Philippine Islands
has no treaty making powers. 5 Op. Atty. Gen. P. I. 326; and the
exhaustive thesis to this effect of Juan L. Luna entitled "TreatyMaking Powers of the Government of the Philippine Islands under
Its Present Status," submitted to the College of Law, University
of the Philippines, for the degree of Bachelor of Laws. In accord
U. S. v. Rauscher (1886), 119 U. S. 407, 30 L. Ed. 425; U. S. v.
Arjona (1887), 120 U. S. 479, 30 L. Ed. 728; Butler, Treaty-Making Power of the United States, secs. 121, 133.




372


PHILIPPINE GOVERNMENT


An unbroken line of opinions in a similar vein showing
the autonomous nature of the Philippine Government can
be found.16
Are the Philippines sovereign?
Sovereignty may be said to be the union and exercise
of all human power possessed in a state. Mr. John Austin,
an eminent authority upon the science of jurisprudence,
says:
"The superiority, which is styled sovereignty, and the
independent political society which sovereignty implies,
is distinguished from  other superiority, and from   other
society, by the following marks or characters:"1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior, let that common superior be a certain individual, person, or a certain body or aggregate of individual persons.
"2. That certain individual, or that certain body of
individuals, is not in a habit of obedience to a determinate
human superior." 16
Some writers use sovereignty and independence as
practically  synonymous.    International law, however,
recognizes semi-sovereign states 17 maintaining international relations but not altogether independent, because
15 See Arellano, C. J. in In re Patterson (1902), 1 Phil. 93; Johnson J. in Barcelon v. Baker (1905), 5 Phil. 87; Willard J. in Gaspar v. Molina (1905), 5 Phil. 197; Elliott J. in U. S. v. Bull (1910),
15 Phil. 7; Trent J. in Severino v. Governor-General (1910), 16
Phil. 366; Johnson J. in Forbes v. Chuco Tiaco (1910), 16 Phil. 534;
Villamor, Attorney-General, opinion June 8, 1910, 5 Op. Atty. Gen.
P. I. 511. And for Porto Rico, In re Neagle (1914), 21 Porto Rico,
339.
16 Austin, The Province of Jurisprudence Determined, Vol. I,
p. 170; Jameson, Constitutional Conventions, 4th Ed., p. 17. See
further Story on the Constitution, 5th Ed., sec. 207; 36 Cyc. 516,
citing cases.
17 Revier, Principes du Droit des Gens; Calvo, Le Droit Int; 1
Moore, International Law Digest, pp. 18-20, 27.




TIE STATUS OF THE PHILIPPINES


373


a paramount state called the suzerain can control its foreign affairs. Sovereignty assumes two aspects: External,
as independent of all control from  without; internal, as
paramount over all action within.1s
The United States as an independent state must be
presumed to have retained sovereignty over all places
subject to its jurisdiction.  In fact, the United States
Supreme Court has held that during the term of pupilage,
territories and dependencies do not constitute a sovereign
power.19  The same Court, having in mind the title acquired by the Treaty of Paris, has further said that the
Philippines "came under the complete and absolute sovereignty and dominion of the United States." 20 Again
the Court said that "The jurisdiction and authority of the
United States" over the Philippines "for all legitimate
purploses of government, is paramount." 21 And Congress
while granting autonomy to the Philippines in the Act of
August 29, 1916, yet in the preamble to the law went out
of its way to state that "the rights of sovereignty by the
people of the United States" were not thereby impaired.
Such conclusions are reinforced when it is recalled that
while the Philippine Government has a large and peculiar
authority not possessed by any State or territory of the
United States, nevertheless it lacks certain attributes of
an independent State. It has not the right, for example,
8 Holland's Jurisprudence 11th Ed., p. 50.
9 Snow v. U. S. (1873), 18 Wall. 317, 21 L. Ed. 784. See also
Talbot v. Silver Bow County Commissioners (1891), 139 U. S.
438, 35 L. Ed. 210; Dorr v. U. S. (1904), 195 U. S. 138, 49 L. Ed.
128, 11 Phil. 706.
20The Diamond Rings (1901), 183 U. S. 176, 179, 46 L. Ed.
138. To same effect, Dorr v. U. S. (1904), 195 U. S. 138, 49 L.
Ed. 128; Rasmussen v. U. S. (1905) 197 U. S. 516, 49 L. Ed. 862;
Carifio v. U. S. (1909), 212 U. S. 449, 53 L. Ed. 594; 38 Cyc. 196,
citing cases.
21 Grafton v. U. S. (1907), 206 U. S. 333, 354, 51 L. Ed. 1084, 11
Phil. 776, 798.




374


PHILIPPINE GOVERNMENT


to have an army and a navy, to declare war, or to enter
into strictly international relations.  "The only government of this country which other nations recognize or
treat with is the government of the Union...   " 22
Even those functions which apparently bring the Islands
close to sovereignty are regulated or permitted by
American law. Thus the power which the government
of the Philippine Islands has in respect to a local coinage
is derived from an express act of Congress, which retains
this exclusive prerogative of sovereignty.23  The Philippines could only have such sovereign rights after it is
made independent, since, at present, they are essential
attributes of American sovereignty expressly delegated to
the national government and enumerated in the Constitution. Always is there the transcendent power of Congress and the President of the United States, which, even
when dormant, indicates a superior right to annui or
modify any action of the local government or to withdraw any privilege once granted. "Mother-countries may
concede to colonies (dependencies) the most complete
autonomy of government, and reserve to themselves a
control of so slight and negative a character as to make
its exercise a rare occurrence; yet, so long as such control
exists, the sovereignty of the mother-country is not released, and such colony is therefore to be considered as
possessing no independent political powers." 24
Testing the status of the Philippines by our definition
of "state," we find this resultant proposition: The Philippine Islands is not a sovereign or semi-sovereign state,
because, while it may be composed of a people perma22Fong Yue Ting v. U. S. (1893), 149 U. S. 698, 37 L. Ed. 905.
23Ling Su Fan v. U. S. (1910), 218 U. S. 302, 54 L. Ed. 1049.
See also sec. 10, Philippine Autonomy Act.
24 Willoughby, The American Constitutional System, p. 6. See to
same effect Butler, Treaty-making Power of the United States, sec.
121 and notes.




THE STATUS OF THE PHILIPPINES


375


nently occupying a fixed territory bound together by
common laws, habits, and customs into one body politic,
yet it does not exercise through the medium      of an organized government independent sovereignty and control
over all persons and things within its boundaries and is
not capable of making war and peace and of entering into
international relations with the other communities of the
world.25 But as a proviso that the Philippine Islands has
internal sovereignty and enjoys substantially all the powers possessed by a state of the American Union.26
~ 96. Whether a state or territory of the United
States.-If not a foreign country and if not sovereign
or semi-sovereign, are the Philippines a state or territory
of the United States?
No argument is needed to show the negative of the
question-the Islands are neither a state nor an organized,
incorporated territory.27  The Philippines, it is true, has
the form of government of such a state or territory and
possesses many of their attributes, but is not admitted to
this relationship. Just as the Diamond Rings case running along parallel lines with one of the Insular Cases
found the Philippines not to be a foreign country, so the
Dorr case 8 equivalent to another Insular Case applied
basic constitutional principles to the point of whether or
25 Moore, International Law Digest, p. 14; Phillimore, Int. Law,
3rd Ed., Vol. I, p. 81.
26 Porto Rico v. Rosaly (1913), 227 U. S. 270, 57 L. Ed. 507;
In re Neagle (1914), 21 Porto Rico 339.
27 "The Philippine Islands is not a state." U. S. v. Bull (1910),
15 Phil. 7, 20. Nor an organized territory. 23 Op. Atty. Gen. U. S.
634. See also Chun Toy v. Insular Collector of Customs (1915),
XIII O. G. 2206.
28 195 U. S. 138, 49 L. Ed. 128, 11 Phil. 706 (1904). The opinion
of the Supreme Court of the Philippines in the same case (1903),
2 Phil. 269, is well reasoned and illuminating. See further In re
Allen (1903), 2 Phil. 630.




376


PHILIPPINE GOVERNMENT


not the Philippines were incorporated into the United
States.
The Dorr case presented the question whether, in the'
absence of a statute of Congress expressly conferring
the right, the sixth amendment, concerning trial by jury,
is a necessary incident of judicial procedure in the Philippine Islands and controlling on Congress, where (lemand for trial by that method has been made by the
accused and denied by the courts established in the
Islands. The opinion has special weight, for it was delivered by Mr. Justice Day who had been Secretary of
State during the Spanish-American War and President
of the American Peace Commission. He affirmed the
right of the United States to acquire territory and the
right of Congress to govern the acquired territory subject
only "to such constitutional restrictions upon the powers
of that body as are applicable to the situation." The
court then concluded that Congress is not required "to
enact for ceded territory, not made a part of the United
States by Congressional action, a system of laws which
shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own
force, carry such right to territory so situated."
The Supreme Court of the United States shortly thereafter elucidated the Dorr case still further in a case
concerning the status of Alaska.89 Mr. Justice White
(the present Chief Justice) in the opinion said that in
the Dorr Case "it was decided that, whilst by the treaty
with Spain the Philippine Islands had come under the
sovereignty of the United States and were subject to
its control as a dependency or possession, those Islands
had not been incorporated into the United States as a
part thereof, and therefore Congress, in legislating concerning them, was subject only to the provisions of the


29 Rasmussen v. U. S. (1905) 197 U. S. 516, 49 L Ed. 862.




THE STATUS OF THE PHILIPPINES


377


Constitution applicable to territory occupying that relation. The power to acquire territory without incorporating it into the United States as an integral part thereof,
was sustained upon the reasoning expounded
in the opinion of three, if not of four, of the judges who
concurred in the judgment in Downes v. Bidwell, that
reasoning being in effect adopted in the Dorr Case as
the basis of the ruling there made." After quoting with
approval from the opinion in the Dorr Case, the Court
continued: "We are brought, then, to determine whether
Alaska has been incorporated into the United States as
a part thereof, or is simply held, as the Philippine Islands
are held, under the sovereignty of the United States
as a possession or dependency. Concerning the test to be
applied to determine whether in a particular case acquired
territory has been incorporated into and forms a part of
the United States, we do not deem it necessary to review
the general subject, again contenting ourselves by quoting a brief passage from the opinion in Dorr v. United
States, summing up the reasons which controlled in determining  that the   Philippine  Islands  were  not
incorporated."
These conclusions are substantiated by facts previously
learned: The treaty of peace did not engage to incorporate the Philippines or its inhabitants into the
United States. Congress to whom the political status
was left for determination did not extend the laws and
Constitution of the United States to the Islands.
Possibly we should have before stated that in a general
sense the Philippine Islands is a territory. But recently
(October 28, 1915) Attorney-General Gregory, reviewing the question, felt constrained to reverse an opinion
of Attorney-General Knox a' and to hold that "While,
like Porto Rico, the Philippine Islands are not in

s 24 Op. Atty. Gen. U. S. 549.




378


PHILIPPINE GOVERNMENT


corporated in the United States, they clearly are territory of the United States, and to the extent that Congress
has assumed to legislate for them, they have been granted
a form of territorial government and to this extent are
a territory." Although in the opinion no distinction is
drawn between an "Organized" or "Unorganized," "Incorporated" or "Unincorporated" Territory, it can be inferred therefrom that the Philippine Islands should constitutionally be considered to be an unincorporated
territory.
The Philippine Islands have not been incorporated into
the United States as a part thereof; i. e., are not a State
or an organized, incorporated territory. The Philippines
are an unincorporated territory.
~ 97. Whether a colony, dependency, or possession.-If not a foreign country, if not sovereign or
semi-sovereign, and if not a State or an organized, incorporated territory, are the Philippines a colony, dependency, or possession of the United States?
The terms "colony," "dependency," and "possession"
can be distinguished. A colony is a dependent political
community settled or prospectively to be settled to a considerable degree by the citizens of its dominant state.30 A
dependency is a territory distinct from the country in
which the supreme sovereign power resides, but belonging rightfully to it, and subject to the laws and regulations which the sovereign may think proper to prescribe.31
A possession is much the same as a dependency, unless it
be that possession implies title by conquest. A colony differs from a dependency or a possession because settled by
80Keller, Colonization, pp. 1, 2: Law Dictionaries; U. S. v. The
Nancy (1814), 3 Wash. 281, 286, 27 Fed Cas. No. 15,854.
81Law Dictionaries; U. S. v. The Nancy, Id. Holt, Introduction
to the Study of Government, Ch. X, gives two types of Dependencies,
Colonial and Direct.




THE STATUS OF THlE PHILIPPINES


379


citizens of the parent state, while a dependency or possession is mainly inhabited by people foreign in blood and
habits.
Washington, Circuit Justice, explains the phrases as
follows:
"The second position which arises out of the view before taken, of the different acts of congress on this subject, is, that the non-importation law of March 1, 1809,
which interdicted commerce with the possessions, as well
as with the colonies and dependencies of Great Britain,
was revived only against that nation, her colonies, and
dependencies; and this conducts us to the third and most
difficult question in the cause. Is Malta to be considered
as a dependency of Great Britain? In deciding this question, the court has not had an opportunity to derive much
information from books. The precise meaning of the
word 'dependency', as it is used by congress, in the law
under consideration, cannot be ascertained with any degree of certainty. It may, however, be safely concluded,
that it imports some civil and political relation, which one
country bears to another, as its superior, different from
that of a mere possession. The introduction of the words
'actual possession', into the act of March 1, 1809, and the
omission of them in that of May 1, 1810, afford strong
evidence, that congress did not consider a dependency,
as synonymous with a possession; but, on the contrary,
the difference was so material, as to induce congress to
sanction a trade with the former, which had been previously interdicted with both. As soon as this distinction
is established, the mind of a legal man is irresistibly led to
annex to the one, the idea of possession, accompanied by
title, in opposition to a mere naked possession, obtained
either by force, and against right, or rightfully acquired,
and wrongfully withheld from the legal sovereign; and
this, the court is strongly inclined to think, is the true




380


PHILIPPINE GOVERNMENT


definition of a dependency;-that is, a territory distinct
from the country in which the supreme sovereign power
resides, but belonging rightfully to it, and subject to the
laws and regulations wzhich the sovereign may think
proper to prescribe. It is not a colony, because it is ntot
settled by the citizens of the sovereign, or mother state;
but it is lawfully acquired or held, and the people are as
much subjects of the state which has thus obtained it, as if
they had been born in the principal state, and had emigrated to the dependent territory. The usual ways by
which such acquisitions are made, are by purchase, or by
conquest in war. The first, being made with the consent
of the sovereign, is permanent and indefeasible; but the
latter is subject to uncertainty, and liable to restoration to
the sovereign, from whom it was taken, unless confirmed
by a treaty of peace, or unless it be voluntarily relinquished by such sovereign. When so confirmed, or relinquished, and not before, it seems to be, in the true sense
of the word, a dependency; that is, it is durably incorporated into the dominions of the conqueror, and becomes
a part of his territory, as to government and national
right." 82
The President, the Congress, and the United States
Supreme Court have never spoken of Porto Rico and the
Philippine Islands as colonies. They can not be properly
so designated. The Courts especially have always described the Philippines as a dependency or possession.33
nU. S. v. The Nancy (1814), 3 Wash. 281, 286, 27 Fed. Cas. No.
15,854.
83 See Downes v. Bidwell (1901), 182 U. S. 244, 45 L. Ed. 1088;
Dorr v. U. S. (1904), 195 U. S. 138, 49 L. Ed. 128, 11 Phil. 706;
Rasmussen v. U. S. (1905) 197 U. S. 516, 49 L. Ed. 862; Gardiner,
Our Right to Acquire and Hold Foreign Territory, p. 20. "United
States and its possessions," as used in the U. S. Tariff laws, construed in Uy Chaco v. Collector of Customs (1913), 24 Phil. 548.
"Possession" or "Insular Possession" used in a number of Acts of




THE STATUS OF THE PHILIPPINES


381


~ 98. Whether part of the United States in an international sense. —If not a foreign country, if not
sovereign or semi-sovereign, if not a State or an organized, incorporated territory, and if not a colony, are the
Philippines a part of the United States in an international sense?
The term "United States" " has two meanings. It is
first, strictly speaking, but the union of the separate States
under a common constitution.85    On the other hand, it has
a bro.(l signification in dealing with foreign sovereignties
and then includes all territory subject to the jurisdiction
of the Federal Government.      Mr. Chief Justice Marshall
said that "It is the name given to our great republic which
is composed of States and territories. The District of
Columbia or the territory west of the Missouri is not less
within the United States than Maryland or Pennsylvania." 86
Statutes of Congress have construed the phrase
"United States" to embrace all waters, territory or other
places subject to the jurisdiction thereof. A late case 87
has held the Philippines to be a part of the United States
within the meaning of a commercial convention with
Congress, e. g., Act of June 13, 1906, sec. 12; Act, Feb. 20, 1907; U.
S. Passport Rule of Sept. 12, 1903, etc.
84 See generally C. C. Langdell, The Status of Our New Territories, XII Harvard Law Review (1899), p. 365; 5 Op. Atty. Gen.
P. I. 622.
85 Texas v. White (1869), 10 Wall. 700, 19 L. Ed. 227.
6 Loughborough v. Blake (1820), 5 Wheat. 317, 319, 5 L. Ed.
98; De Geofrey v. Riggs (1890), 133 U. S. 258, 33 L. Ed. 642;
Downes v. Bidwell (1901), 182 U. S. 1, 262, 45 L. Ed. 1088.  Mr.
Butler sums up the difference in a single, well-balanced sentence"As to state matters and internal affairs, the United States are a
federation, as to general matters affecting foreign affairs or territory
held in common, the United States is a nation." Treaty-Making
Power of the United States, Vol. I, pp. 27, 28.
87Faber v. U. S. (1911), 221 U. S. 649, 55 L. Ed. 897.




382


PHILIPPINE GOVERNMENT


Cuba. The Magistrate's decision in the Sotto case at
Hongkong, August 16, 1913, looked upon the Philippines
as a constituent part of the United States. The idea of
American sovereignty would necessarily refute any view,
relative to relations with foreign governments, which permitted a disregard of paramount American authority, as
unsafe and undignified.
The Philippines are a part of the United States in an
international sense.88
~ 99. The case of United States versus Bull.-In
the case of United States v. Bull 39 the Supreme Court of
the Philippine Islands, considering "the importance of
the question" presented, "after much discussion and considerable diversity of opinion," established "certain applicable constitutional doctrines." In reality the opinion
by Mr. Justice Elliott constitutes a veritable text book in
the most approved style on certain subjects of Philippine
Government. Therein, after enunciating fundamental,
constitutional conceptions, tracing the history of the government, and analyzing its functions, it was said of the
status of the Philippines:
"This Government of the Philippine Islands is not a
State or a Territory, although its form and organization
somewhat resembles that of both. It stands outside of the
constitutional relation which unites the States and Territories into the Union. The authority for its creation and
maintenwnce is derived from  the Constitution of the
United States, which, however, operates on the President
and Congress, and not directly on the Philippine Government. It is the creation of the United States, acting
through the President and Congress, both deriving power
from the same source, but from different parts thereof.
For its powers and the limitations thereon the Govern

88 See C. F. Randolph, Law and Policy of Annexation, pp. 12, 13.
89 15 Phil. 7 (1910).




THE STATUS OF THE PHILIPPINES


383


ment of the Philippines looked to the orders of the President before Congress acted and the Acts of Congress
after it assumed control. Its organic laws are derived
from the formally and legally expressed will of the President and Congress, instead of the popular sovereign constituency which lies back of American constitutions. The
power to legislate upon any subject relating to the Philippines is primarily in Congress, and when it exercises such
power its act is from the viewpoint of the Philippines the
legal equivalent of an amendment of a constitution in the
United States.
"Within the limits of its authority the Government of
the Philippines is a complete governmental organism with
executive, legislative, and judicial departments exercising
the functions commonly assigned to such departments."
While this opinion went to the extreme in a judicial
endeavor to sanction legislative authority and to set up a
quasi-sovereign government, it was not appealed to the
United States Supreme Court and is controlling.4 The
same result was attained in two later decisions affecting
the executive power.41
~ 100. Whether legally organized.-The Government of the Philippine Islands rests on a valid title under
international law passed by Spain to the United States,
and a constitutional foundation of right of acquisition
and government. The United States had the right to
acquire the Philippines by treaty. The President had the
right to institute military rule merging into quasi-civil
administration.' Congress had the right to confirm Presidential action, to organize a temporary government, and
4 But compare with In re Guarifia (1913), 24 Phil. 37. See sec.
80 supra, note 7, p. 279.
41 Severino v. Governor-General (1910), 16 Phil. 366 and Forbes v.
Chuco Tiaco (1910), 16 Phil. 534.
4Duarte v. Dade (1915), XIII 0. G. 2006.




384


PHILIPPINE GOVERNMENT


later, to create a local organization, and to delegate legislative authority to such agencies as it selected.
In a case where the legal constitution of the courts of
the Islands was challenged, Mr. Justice Moreland said"That the government here in these Islands... has
been legally and properly constituted by Congress we do
not doubt." u
~ 101. Whether Filipinos are aliens, subjects, or
citizens.-In addition to ascertaining the status of the
Philippines as an entity, it is well to note the status of
the Filipino as an individual.
Are the Filipinos aliens? An early opinion of the
Acting Attorney-General of the United States loosely
mentions them as such." But all later opinions of the
Attorney-General of the United States and of the Attorney-General of the Philippines have held the inhabitants
of the Philippines not to be aliens.45 This must be so,
if the provisions of the Treaty of Paris transferring the
sovereignty of Spain over the Islands and their people
to the United States, and if the decisions of the Supreme
48U. S. v. Beecham (1910), 16 Phil, 272, 299, citing cases. See
also the Insular Cases; Binns v. U. S. (1904), 194 U. S. 486, 48
L. Ed. 1087; Dorr v. U. S. (1904), 195 U. S. 138, 49 L. Ed. 128, 11
Phil. 706; U. S. v. Heinszen & Co. (1907), 206 U. S. 370, 51 L. Ed.
1098.
"22 Op. Atty. Gen. U. S. 495, May 29, 1899.
s See Op. Atty. Gen. P. I., April 1, 1912, holding that "the
United States Contract Labor Law deals with aliens; Filipinos are
not aliens; the Act of Congress of February 20, 1907, concerns 'the
greater United States'; the Philippine Islands are included therein.
In my opinion, therefore, the taking of Filipinos from these Islands
to San Francisco to be used as laborers in connection with the
Philippines exhibit at the Panama-Pacific International Exposition
would not violate any provision of the United States Contract
Labor Law." And 25 Op. Atty. Gen. U. S. 131, where AttorneyGeneral Knox held that citizens of the Philippine Islands coming
from foreign parts are not required to pay the head-tax prescribed
by section 1 of the Act of March 3, 1903.




THE STATUS OF THE PHILIPPINES


385


Court of the United States to the effect that Porto Rico
and the Philippines are not foreign countries but are
parts of the United States in an international sense, are
to be given effect. The native inhabitants' relations with
their former sovereign were dissolved by cession. They
ceased to be Spanish subjects.    The allegiance of the
Filipinos became due to the United States."
The Chief Justice in a leading case concerning the
question of whether a Porto Rican was an alien within
the meaning of the Contract Labor Law of 1891, said:
"We think it clear that the act relates to foreigners
as respects this country, to persons owing allegiance to
a foreign government, and citizens or subjects thereof;
and that citizens of Porto Rico, whose permanent allegiance is due to the United States; who live in the peace
of the dominion of the United States; the organic law
of whose domicil was enacted by the United States, and
is enforced through officials sworn to support the Constitution of the United States,-are not 'aliens,' and upon
their arrival by water at the ports of our mainland are
not 'alien immigrants,' within the intent and meaning of
the act of 1891." 47
Are the Filipinos citizens of the United States? The
term  "citizen" has different meanings in municipal and
international law. Without venturing into fine distinctions, let us take its strict definition under American
law, to be a member of the sovereign people entitled to
full civil and political rights.48 Citizenship originates
46 American Insular Co. v. Canter (1828), 1 Pet. 511, 7 L. Ed.
242, generally; Gonzalez v. Williams (1904), 192 U. S. 1, 48 L. Ed.
317, as to Porto Ricans; the Diamond Rings (1901), 183 U. S.
176, 46 L. Ed. 138, as to Filipinos.
47 Gonzalez v. Williams (1904), 192 U. S. 1, 48 L. Ed. 317. See
also American Ry. Co. v. Didricksen (1913), 227 U. S. 145, 57 L.
Ed. 456; Roa v. Collector of Customs (1912), 23 Phil. 315, 336.
48 See U. S. v. Cruickshank (1876) 92 U. S. 542, 23 L. Ed. 588.
P. I. Govt.-25.




386


PHILIPPINE GOVERNMENT


not with man but with the government.        In the United
States it can only be acquired by birth or naturalization.
We find no such collective naturalization 4 accomplished for the Filipinos as was granted to the inhabitants
of ceded territory previous to the Spanish War by treaty,
political incorporation, and extension of the Constitution.
Article IX of the Treaty of Paris left the civil rights and
political status of the native inhabitants to be determined
by Congress.     This, said the United     States Supreme
Court, "is an implied denial of the rights of the inhabitants (of Porto Rico and the Philippines) to American
citizenship until Congress by further action shall signify
its assent thereto."    And Congress in the Philippine
Bill 6 did not confer Federal citizenship but declared
them   to be "citizens of the Philippine Islands."      The
Filipinos could not fulfill the requirements of the fourteenth amendment to the Constitution defining citizen of
the United States, for, while they are subject to the
jurisdiction of the United States, they are not necessarily
"persons born or naturalized in the United States." 52
Provision has been made for the Filipinos to become citizens by complying with the provisions of section 30 of
49See Fuller, C. J., in Boyd v. Thayer (1892), 143 U. S. 135, 36
L. Ed. 103; III Moore, International Law Digest, pp. 311-318.
Whether a treaty could constitutionally add to the members of
the Union has never been decided by the courts. In the debate on
the Louisiana purchase, it was contended that the Constitution did
not vest such power in the President and the Senate. Annals of
Congress, 1803, pp. 432 et seq.; Magoon's Reports, pp. 123 et seq.
Whether birth in the Philippines after the treaty makes one a citizen
is also unsettled.
0 White J. in Downes v. Bidwell (1901), 182 U. S. at p. 280, 45
L. Ed. 1103.
51 Act of Congress, July 1, 1902, sec. 4, and Act of Congress,
March 23, 1912. Executive Order No. 32, series of 1904, by the
Governor-General relating to passports makes the same distinction.
58 Read U. S. v. Wong Kim Ark (1898), 169 U. S. 649, 42 L. Ed.
890.




THE STATUS OF THE PHILIPPINES


387


the Naturalization Law of June 29, 1906, thus proving
that before doing     so  they  are  not considered     to  be
citizens.
\\ith this definition of citizenship and these fundamental conceptions in mind, one is not surprised to find
all authorities holding that the inhabitants of Porto Rico
and the Philippines are not citizens of the United
States.63
Are the Filipinos subjects of the United States?       The
word "subject" was discarded upon the separation of
the states from Great Britain as not suited to one living
under a republican form of government." It describes a
servile relationship which is not true of actual conditions.
If not an alien, if not a citizen of the United States,
and if not a subject of the United States, the Filipino
5s Attorney-General Griggs says that "the undisputed attitude of
the executive and legislative departments of the Government has
been and is that the native inhabitants of Porto Rico and the
Philippine Islands did not become citizens of the United States by
virtue of the cession of the Islands by Spain by means of the
Treaty of Paris." 23 Op. Atty. Gen. U. S. 370. Also 23 Op. Atty.
Gen. U. S. 400; 25 Op. Atty. Gen. U. S. 179; 3 Op. Atty. Gen.
P. I. 292; 5 Op. Atty. Gen. P. I. 144; Magoon's Reports, pp. 60,
61; Mr. Hay, Secretary of State, III Moore, Int. Law Digest, pp.
316-318; Tan Te v. Bell (1914), 27 Phil. 354.
MWaite, C. J., in Minor v. Happersett (1875), 21 Wall. 162,
165, 166, 22 L. Ed. 627; White v. Clements (1896), 39 Ga. 232.
"In one sense, the term sovereign has for its correlative, subject.
In this sense, the term can receive no application; for it has no
object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects.  'Citizens of the
United States.' 'Citizens of another state.' 'Citizens of different
states.' 'A state or citizen thereof.' The term, subject, occurs,
indeed, once in the instrument; but to mark the contrast strongly,
the epithet 'foreign' is prefixed." Chisholm v. Ga. (1793), 2 Dall,
419, 456, 1 L. Ed. 440. But Arellano, C. J., in In re Bosque (1902),
1 Phil. 88 (possibly because of the then uncertain status) and Rule
38 of the Ut. S. Chinese Regulations of February 5, 1906, makle use
of the word "subject."




388


PHILIPPINE GOVERNMENT


would seem to be a man without status. Not so. Beginning anew, "citizen" in international law may have
a broad significance.5 In the course of an elaborate
opinion for the American minister resident in Siam, Attorney-General Araneta explains this idea as follows:
"It logically follows from what has been said, that if
by 'citizen' we mean 'a member of the civil state, entitled
to all its privileges,' the inhabitants of the Philippine
Islands are not citizens of the United States, for even
in the treaty it is provided that 'the civil rights and political status...  shall be determined   by the
Congress' (Art. IX), and Congress has, in conformity
with this provision, expressly declared them to be citizens
of the Philippine Islands. Nor do they fulfill the requirements of the fourteenth amendment to the Constitution, for while they are subject to the jurisdiction of the
United States they are not 'persons born or naturalized
in the United States.'
"If by 'citizen' is meant one who owes allegiance to
the United States in return for the protection which that
Government affords him, then the inhabitants of these
Islands are citizens of the United States. That they are
entitled to call upon the United States to protect them
in their rights of property and person, preserve the public
peace, maintain law and order, and prevent encroachments upon the territory by foreign nations can not be
denied. Correlatively, the inhabitants owe allegiance to
the sovereignty and obedience to the laws whereby the
sovereignty undertakes to discharge the obligation.
"While it is clear, therefore, that the inhabitants of
these Islands are not citizens of the United States in respect to the rights, privileges, and immunities guaranteed
by the Constitution to the citizens of the several states of
65 Waite, C. J., in Minor v. Happersett, Id.; Fuller, C. J., in Boyd
v. Thayer (1892), 143 U. S. 135, 36 L. Ed. 103.




THE STATUS OF THE PHILIPPINES


the American Union, it is also equally clear that they
are citizens of the United States in an international sense,
and as such are entitled as of right to the protection of
the United States in their rights of property and person,
whether at home or in foreign lands." 6
Congress has legislatively classified the inhabitants of
Porto Rico and the Philippines as "persons not citizens"
but who     "owe   permanent allegiance     to  the  United
States." 57  To avoid needless confusion, Frederick R.
Coudert, John Basset Moore and others have suggested
the comprehensive word       "national," to designate the
status of one not an alien and yet not a full citizen-a
position somewhat akin to the common law principle of
English nationality-birth within the allegiance of the
King.   The distinction then becomes one between aliens
and nationals, the latter including citizens. Mr. Coudert
says: "National would include all persons owing allegiance to the United States and exclude all persons owing
663 Op. Atty. Gen. P. I. 292, 295, citing at length Van Dyne,
Citizenship of the United States, pp. 229, 230. For purposes of
suit it "has been the uniform practice" of the Federal Court for
Porto Rico, to consider a citizen of Porto Rico as a citizen of the
United States. See Gonzalez v. Izaguirre (1913), 6 Porto Rico
Fed. 222.  "The inhabitants of Porto Rico and the Philippine
Islands, other than those who were subjects of Spain at the date
of the treaty of peace of December 10, 1898, and who elected to
retain their allegiance of nativity, obtained the international status
of citizens of the United States in the operation of that instrument.
They did not become citizens of the United States, however, within
the meaning of the Constitution, and, until their status in that
regard has been established by Congress, they will continue to
occupy the anomalous condition of citizens of Porto Rico and
the Philippine Islands." Davis, Elements of International Law,
3d Ed., p. 141. An opinion of the Attorney-General of the United
States has held a native Porto Rican to be "an American." 24 Op.
Atty. Gen. U. S. 40. John S. Wise, Citizenship, Ch. I, would denominate the situation of such persons as "qualified citizenship."
7 Act of Congress, June 29, 1906, sec. 30.




390


PHILIPPINE GOVERNMENT


allegiance to any other power. It is the co-relative of alien,
and the two together are universally inclusive. A national is one who owes allegiance to any State, whatever
its form of government. All citizens must be nationals,
but all nationals may not be citizens." 58
As bearing out such a thesis, two things are certainthe Filipinos owe allegiance 59 to the United States; the
Filipinos are entitled to the same protection 60 as citizens
of the United States. "Allegiance and protection are,
in this connection, reciprocal obligations. The one is
compensation for the other-allegiance for protection and
protection  for allegiance." 6    The United     States can
demand obedience to such laws as are enacted for the
Philippines. She could ask for the aid of Filipinos in
case of need. Reciprocally, the inhabitants of the Philippines are entitled to protection from the United States
in their rights of property and person, for the preservation of the public peace, for the maintenance of law and
order, and for the prevention of encroachment upon the
58 Coudert, Certainty and Justice, p. 136.  Same author, Our
New Peoples: Citizens, Subjects, Nationals, or Aliens, III Columbia Law Review, Jan., 1903, p. 131. See also MacClintock, Aliens
under the Federal Laws of the United States, III Ill. Law Review,
March, 1909, p. 493; and Moore, Int. L. Dig. sec. 372. "The general
terms 'alien,' 'citizen,' 'subject,' are not absolutely inclusive, or completely comprehensive." Gonzalez v. Williams (1904), 192 U. S.
1, 48 L. Ed. 317.
9 The Supreme Court of the Philippines makes this distinction
in allegiance: "The Philippine Islands is and has been since the
passage of said Act (July 1, 1902) completely under the control
of the Congress of the United States and all the inhabitants owe
complete and full allegiance or a qualified temporary allegiance,
as the case may be, to the United States." Roa v. Collector of
Customs (1912), 23 Phil. 315, 317.
0 Mr. Hay, Sec. of State, III Moore, Int. L. Dig., pp. 316, 317;
Mr. Hill, Acting Sec. of State, Id.; Gonzalez v. Williams, Id.
61 Waite, C. J., in Minor v. Happersett (1875), 21 Wall. 162, 165,
22 L. Ed. 627.




THE STATUS OF TIlE PHILIPPINES


391


territory by foreign nations;" passports are issued to
them;" and when residing abroad, they can call upon
American consuls and diplomatic representatives for assistance and can receive the benefits of treaties between
the United States and foreign countries.     The amnesty
proclamation expressly recognizes the obligation of allegiance to the United States.    The Philippine Bill expressly confirmed the corresponding right to the protection  of the United    States.   And the United     States
Supreme Court solemnly stated that "their (the native
inhabitants) allegiance became due to the United States,
and they became entitled to its protection." "
The Filipinos are not aliens, or subjects, or citizens of
the United States. They are citizens of the Philippine
Islands. They are also American nationals owing allegiance to the United States and entitled to its
protection.
~ 102. Status stated.-The subject is one not free
from doubt. Some comprehend its complexities. Still
fewer undertake its solution. But the previous discussion
should leave us in a position to determine exactly the
present status of the Philippine Islands and their
inhabitants.
62 Magoon's Reports, p. 61.
63 The Revised Statutes of the United States, sec. 4,076, prohibits
the granting or verification of passports to and for any person other
than citizens of the United States. The Act of June 14, 1902,
amended this section so as to make it read: "No passports shall
be granted or issued to or verified for any persons than those
owing allegiance, whether citizens or not, to the United States."
See 5 Op. Atty. Gen. P. I. 144. Paragraph 9 of Executive Order
No. 32, series of 1904, reads: "In addition to the statements required by rule three, he (a Filipino) must state that he owes allegiance
to the United States and that he does not acknowledge allegiance to
any other government; and must submit an affidavit from at least two
credible witnesses having good means of knowledge in substantiation
of his statements of birth, residence, and loyalty."
6The Diamond Rings (1901), 183 U. S. 176, 46 L. Ed. 138.




392


PHILIPPINE GOVERNMENT


From a negative standpoint the Philippines occupy
a relation to the United States different from that of
other non-contiguous territory; not a foreign country;
not sovereign or semi-sovereign; not a state or an organized, incorporated territory; not a part of the United
States in a domestic sense; not under the Constitution,
except as it operates on the President and Congress; and
not a colony. The Filipinos are neither aliens, subjects,
nor citizens of the United States.
THE PHILIPPINES ARE A DEPENDENCYAN    UNINCORPORATED          TERRITORY - BELONGING TO THE UNITED STATES AND UNDER ITS COMPLETE SOVEREIGNTY-A PART
OF THE UNITED STATES IN AN INTERNATIONAL SENSE. Officially, the Philippines are usually
spoken of as an insular possession. From another view
the Philippines are a complete governmental organism
with the form and organization of a state or territory.
It is the legal creation and agent of Congress, which,
for administrative purposes, has placed the Philippine
Government under the supervision of the President, making it a branch of the War Department.
THE    FILIPINOS    ARE   CITIZENS     OF  THE
PHILIPPINE     ISLANDS AND       AMERICAN     NATIONALS OWING ALLEGIANCE TO THE
UNITED STATES AND UNDER THE PROTECTION OF THE UNITED STATES.
If these statements were put in parallel columns, the
anomalous status of the Philippine Islands and its people
would be graphically portrayed. As one keen observer
has said, the Government of the Philippine Islands is a
government foreign to the United States for domestic
purposes, but domestic for foreign purposes-a position
midway between that of being foreign territory absolutely
and domestic territory absolutely.
The status of the Philippines, moreover, is temporary




THE STATUS OF THE PHILIPPINES                 393
and changing-present autonomy leading to future complete independence."
65 Act of Congress of July 1, 1902, the Philippine Bill, is entitled "An Act temporarily to provide for the administration of the
affairs of Civil Government in the Philippine Islands, and for other
purposes." Act of Congress of August 29, 1916, the Philippine
Autonomy Act is entitled: "An Act to declare the purpose of the
people of the United States as to the future political status of the
people of the Philippine Islands, and to provide a more autonomous
government for those islands."




394          PIILIPPINE GOVERNMENT
REPRESENTATIVE AUTHORITIES
W. F. Willoughby, Territories and Dependencies of
the United States (1905), Chs. I-V, IX.
Albert Edward McKinley, Island Possessions of the
United States (1907), Chs. III, IV, V, VII.
Cyclopedia of American Government (1914), appropriate titles.
Frederick R. Coudert, Certainty and Justice (1914),
Chs. IV, VI.
Moore International Law Digest, Vol. I, pp. 14, 18-20,
27; Vol. III, pp. 270-276, 311-318.
38 Cyc., pp. 191 et seq.
U. S. Statutes at Large.
U. S. v. The Nancy (1814), 3 Wash. 281, 27 Fed. Cas.
No. 15,854.
Minor v. Happersett (1875), 21 Wall. 162, 22 L. Ed.
627.
Neeley v. Henkel (1900), 180 U. S. 109, 45 L. Ed.
448.
The Insular Cases (1901), 182 U. S. 1, 45 L. Ed. 1041.
The Diamond Rings Case (1901), 183 U. S. 176, 46
L. Ed. 138.
Hawaii v. Mankichi (1903), 190 U. S. 197, 47 L. Ed.
1016.
Gonzalez v. Williams (1904), 192 U. S. 1, 48 L. Ed.
317.
Dorr v. U. S. (1904), 195 U. S. 138, 49 L. Ed. 128,
11 Phil. 706.
Rasmussen v. U. S. (1905), 197 U. S. 516, 49 L. Ed.
862.
U. S. v. Bull (1910), 15 Phil. 7.




CHAPTER 8.


ORGANIC LAW.1
~ 103. Terminology.
104. The United States Constitution in the Philippines.
105. Treaties of the United States.
106. Laws of express extension.
107. Acts of the Philippine Commission.
108. Laws of inherent force.
109. Resultant rules.
110. The Philippine bill.
111. The Philippine autonomy act
112. Other organic laws.
113. The Philippine Constitution.
~ 103. Terminology.-"Organic Law" is the fundamental law or Constitution of a State, written or unwritten; that law or system of laws which defines and
establishes the organization of government."a It is a term
usually applied to constitutional law only. For the United
States, the Organic Law would be the United States Constitution; for a State of the Union, the United States Constitution and the State Constitution.
When a territory, organized or unorganized, is considered, we find Congress enacting what is known as an
"Organic Act" conferring the powers of government.s
1 Originally appeared in I Southern Law Quarterly, July, 1916, p.
209.
la St. Louis v. Dorr (1898) 145 Mo. 466, 478, 42 L. R A. 686,
68 Am. St. Rep. 575; Black's Law Dictionary, p. 860.
2sn re Lane (1890) 135 U. S. 443, 447, 34 L. Ed. 219; Snow v.
U. S. (1873) 85 U. S. 317, 21 L. Ed. 784; U. S. v. Ensign (1876)
2 Mont. 396, 400; U. S. v. Bull (1910) 15 Phil. 7, 21.
395




396


PHILIPPINE GOVERNMENT


"The Organic Law (or Act) of a territory takes the place
of a Constitution as the fundamental law of the local government." 8 The Philippine Bill, formerly, and the Philippine Autonomy Act, even more so now, are for the Philippines the nearest approach to an Organic Act. The
Supreme Court of the Philippines, speaking through Mr.
Justice Carson, has said that "The various Acts of Congress conferring power upon the Philippine Legislature,
and defining, prescribing and limiting this power, especially the Act of Congress of July 1, 1902, are to that
Legislature in the nature of an organic act with its
amendments, binding on it in like manner as is the Constitution of the United States upon Congress itself." i
To ascertain what the Organic Law of the Philippines
is, it is necessary to begin with the supreme law of the
sovereign, the United States Constitution, and then to
consider the treaties between the United States and foreign countries, and the orders of the President and the
resolutions and Acts of Congress having force in the
Philippines.
~ 104. The United States Constitution in the Philippines.-We have hitherto seen statements without
number to the effect that the Constitution does not 9operate
of its own force within the Philippines. We have further
noticed a formal negative prohibition by Congress inhibiting extension. In the face of such authority, it is with
some temerity that we are constrained to inquire if, nevertheless, there are not some provisions of the Federal Constitution which are of universal application, no matter
whether to a State, Territory, or dependency.
The Court of First Instance of the city of Manila by
8 National Bank v. County of Yankton (1880) 101 U. S. 129, 133,
25 L. Ed. 1046.
In re Guarifia (1913) 24 Phil. 37, 45. See also Conchada v.
Director of Prisons (1915) XIII O. G. 1478.




ORGANIC LAW


397


Lobingier J.5 in rendering decision in the case of Tan Te
v. Bell,6 discussed in a succeeding section, said:
"The truth is that the Federal Constitution contains two
general classes of provisions:
"(1) Those of universal application, such as the prohibition of legislation 'respecting an establishment of religion or the free exercise thereof,' the prohibition of
'slavery or involuntary servitude,' etc. These operate to
restrict the power of Congress in any part of what Chief
Justice Marshall called 'The American Empire.' To no
part of it do they need extension; they are there ex propio
vigore and ex vi termini.
"(2) Those of limited and local application, such as the
requirement that 'no state shall pass any ex post facto
law or law impairing the obligation of contracts,' etc.
Obviously this does not apply to Congress or even to a
territorial legislature."
As an example of this view, take the Thirteenth Amendment mentioned by Judge Lobingier. It reads:
"Sec. 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.
"Sec. 2. Congress shall have power to enforce this
article by appropriate legislation."
Congress enacted appropriate legislation, containing the
phrase "the United States or any place subject to the jurisdiction thereof," to enforce this Amendment.7 The pur6 Author of the article on "Constitutional Law" in the American
and English Encyclopedia of Law and of "Territories" in Cyc.
e 27 Phil. 354 (1914). See sec. 108 infra.
7 Sections 269 and 271 of the United States Criminal Code, in
effect after January 1, 1910, and containing substantially the provisions of the Act of Congress of March 2, 1867, later enacted as
sections 1990 and 5526, of the Revised Statutes of the United States,
are quoted at the head of sec. 141 infra.




398


PHILIPPINE GOVERNMENT


pose was to abolish and prohibit slavery, involuntary
servitude, and peonage.8 As to the effect of the Amendment, it was said by the United States Supreme Court that
this was a "grand yet simple declaration of the personal
freedom of all the human race within the jurisdiction of
this Government." 9 Again more at length in a later
case,~1 the Court said:
"While the inciting cause of the Amendment was the
emancipation of the colored race, yet it is not an attempt
to commit that race to the care of the Nation. It is the
denunciation of a condition and not a declaration in favor
of a particular people. It reaches every race and every
individual, and if in any respect it commits one race to the
Nation it commits every race and every individual thereof.
Slavery or involuntary servitude of the Chinese, of the
Italian, of the Anglo-Saxon are as much within its compass as slavery or involuntary servitude of the African... But, if as we have seen, that denounces a condition possible for all races and all individuals, then a like
zwrong perpetrated by white men upon a Chinese, or by
black men upon a white man, or by any man upon any
man on account of his race, should come within the jurisdiction of Congress, and that protection of individual
rights which prior to the Thirteenth Amendment was tlnquestionably within the jurisdiction solely of the States,
would by virtue of that Amendment be transferred to the
Nation, and subject to the legislation of Congress."
That the Thirteenth Amendment is of application in the
unincorporated as well as in the incorporated Territories,
Professor Willoughby says "is clear." i
SU. S. v. Eberhart (1899) 127 Fed. 252; Slaughter House Cases
(1873) 16 Wall. 36, 69, 72, 21 L. Ed. 394; Hodges v. U. S. (1906)
203 U. S. 1, 16, 51 L. Ed. 65.
9 Slaughter House Cases, Id.
10 Hodges v. U. S., Id.
11 Willoughby on the Constitution, Vol. I, p. 442.




ORGANIC LAW


399


The operation of the Act of Congress enforcing the
Amendment was discussed in another case." Said the
Court:
"It is not open to doubt that Congress may enforce the
Thirteenth Amendment by direct legislation, punishing
the holding of a person in slavery or in involuntary servitude except as a punishment for crime. In the exercise
of that power Congress has enacted these sections denouncing peonage, and punishing one who holds another
in that condition of involuntary servitude. This legislation is not limited to the tcrritories or other parts of the
strictly National domain, btt is operative in the States and
wherever the sovereignty of the United States extends.
We entertain no doubt of the validity of this legislation,
or of its applicability to the case of any person holding
another in a state of peonage, and this whether there be
municipal ordinance or state law sanctioning such holding. It operated directly on every citizen of the Republic,
wherever his residence may be."
Is it not possible that some provisions of the United
States Constitution do have universal application-do
have force in the Philippines? For example, is not the
Philippines a "place" subject to the "jurisdiction of the
United States?" Are not the inhabitants of the Philippines a part of "the human race within the jurisdiction"
of the government of the United States-a "race" and
"individuals" protected by the Thirteenth Amendment
and suppletory Congressional legislation? Do not this
Amendment and this Act operate "wherever the sovereignty of the United States extends"-to the Philippines? The author is bold enough to so suggest, although
since Congress has enacted a similar clause in the Philippine Bill of Rights the question is more theoretical than
practical in nature.


12 Clyatt v. U. S. (1905) 197 U. S. 207, 218, 49 L. Ed. 726.




400


PHILIPPINE GOVERNMENT


~ 105. Treaties of the United States.-The Treaty
of Paris, with its supplemental protocol of agreement extending the period for the declaration of Spanish nationality and the additional treaty for the cession of certain
small islands, because of their direct bearing on the Philippines, can be considered as a part of the supreme law of
the Islands.18 The courts have deemed the provisions of
the Treaty of Paris controlling in a number of cases. The
Universal Postal Convention also gains such rank, because
of its express inclusion of the island possessions of the
United States and because of the interpretation placed
upon the Convention by the Attorneys General of the Philippines and the United States. The treaties between the
United States and China possess importance because of
their bearing on the Chinese Exclusion Law. These are
but examples for probably all treaties of the United States
with foreign powers, because exercisable only by the highest governmental power and so in the nature of a contract
between the United States, as a unit, and other countries,
would, in a sense, have force in the Islands. The Attorney-General of the Philippines has so held.14 The Supreme Court of the Philippines has cited and applied
treaties of the United States apparently on the assumption
that they were applicable here.16 Against such an assumpIs Duarte v. Dade (1915) XIII O. G. 2006. See sec. 66 supra.
14 "The Philippine Islands... when relations with other
countries are concerned, can be taken to be a part of the United
States and so come within the provisions of the treaty between the
United States and the German Empire." Op. Atty. Gen. P. I., Nov.
14, 1913. "A treaty of the United States with any foreign power
must necessarily have force in the Philippine Islands." Mem. Atty.
Gen. P. I., Nov. 25, 1913. In accord, Devlin on the Treaty Power,
sec. 141. But the courts of Hongkong in the Sotto case took somewhat of a different view.
15E. g. Treaty with Sweden and Norway, U. S. v. Bull (1910)
15 Phil. 7. The Hongkong courts were dubious as to the inclusion
of the Philippines within American treaty rights. But the Su



ORGANIC LAW


401


tion, however, is the fact that treaties are made by the
President with the consent of the Senate, and the President and the Senate are given by the Constitution no
direct authority over the territories and dependencies.
However these points would be decided, as a matter of
fact, few of the provisions of treaties would ever be called
in question.
~ 106. Laws of express extension.-The general
rule that orders of the President and acts and resolutions
of Congress, in order to have force and effect in the Philippines, must have been formally, specifically, and expressly extended thereto is agreed to by all.18 These
orders, resolutions, and statutes then constitute the major
portion of the Organic Law of the Islands and form what
may be denominated the present Constitution of the
Philippines.
The course of reasoning which arrives at this conclusion
is this: Congress considered a general and unqualified extension of the Constitution and laws of the United States
to the Philippines as impracticable, as recognizing a status
not desired, and as needlessly a hamper to future action.
Accordingly, in section 1 of the Philippine Bill it was provided that section 1891 of the Revised Statutes of 1878
shall not apply to the Philippines. This section, as we
have already seen, reads: "The Constitution and all laws
of the United States which are not locally inapplicable
shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States." If the Constitution and all laws of the United States do not have
preme Court for the Colony of British Guiana on January 12, 1897,
held an Extradition Treaty between Holland and Great Britain applicable to the colony. Ireland, Tropical Colonization, pp. 42, 43.
1i See U. S. v. Bull (1910) 15 Phil. 7, 21, 27; Roa v. Collector of
Customs (1912) 23 Phil. 315, 339; Tan Te v. Bell (1914) 27 Phil. 354,
including dissenting opinion by Moreland, J.; 38 Cyc. 202 and notes.
P. I. Govt.-26.




402


PHILIPPINE GOVERNMENT


force in the Philippines, conversely, only such laws, or
portions of laws, or orders or resolutions in the nature of
law, as the President under his former war powers or
Congress under its present civil powers shall extend to the
Philippines, are controlling. Finally the Philippine Autonomy Act carries forward the rule by providing "That
the statutory laws of the United States hereafter enacted
shall not apply to the Philippine Islands, except when they
specifically so provide, or it is so provided in this Act."
(Sec. 5.)
The vast majority of the acts and resolutions of Congress passed in the ordinary way would be inoperative
here. Only those resolutions and acts in which Congress
goes out of its way by appropriate language showing legislative intention to have the resolution or act effective in
the Philippines would so operate. A few laws of Congress out of extreme caution have provided that they shall
not apply to the Philippine Islands.17
~ 107. Acts of the Philippine Commission.-Laws
of Congress of express extension to the Philippines have
also had the result of taking parts of one or more Acts of
the Philippine Commission out of the field of ordinary
legislation and making of them, in effect, basic laws. The
Supreme Court of the Islands emphatically so held, in connection with section 9 of the Philippine Bill, as to portions
of Act 136 of the Philippine Commission conferring jurisdiction on the courts.18  The Attorney-General would undoubtedly have reached a similar conclusion, in connection
with section 1 of the Philippine Bill, as to Act 222 of the
17E. g. Act of Congress, Aug. 13, 1912, "An Act to regulate radio
communication" in sec. 10.
18 Weigall v. Shuster (1908) 11 Phil. 340; Barrameda v. Moir
(1913) 25 Phil. '44; In re Guarifia (1913) 24 Phil. 37; McGirr v.
Hamilton (1915) XIII O. G. 878; Conchada v. Director of Prisons
(1915) XIII O. G. 1478; Schultz v. Concepci6n (1915) XIII O. G.
2211.




ORGANIC LAW


403


Philippine Commission, providing the organization of the
Executive Departments, had not such an opinion been
barred by administrative necessity and a fear of creating
administrative chaos.19
~ 108. Laws of inherent force.-Supplemental to
the foregoing discussion relative to the Constitution in
the Philippines and consistent with its tendency, is the
further doctrine, that certain Acts of Congress have inherent application to the Philippines without express extension.
This point was definitely settled, as far as could be done
without further appeal, by the Supreme Court of the Philippines in the case of Tan Te v. Bell.20 Omitting the facts
and certain questions raised by demurrer and on appeal,
the main question was whether section 3748 of the Revised Statutes of the United States had force in the Philippines so as to protect the Commanding General and
other Army officers in their seizure of property. This
section reads as follows:
"The clothes, arms, military outfits, and accoutrements
furnished by the United States to any soldier shall not be
sold, bartered, exchanged, pledged, loaned, or given away;
and no person not a soldier, or duly authorized officer of
the United States, who has possession of any such clothes,
arms, military outfits, or accoutrements, so furnished, and
which have been the subject of any such sale, barter, exchange, pledge, loan, or gift, shall have any right, title,
or interest therein; but the same may be seized and taken
by any officer of the United States, civil or military, and
shall thereupon be delivered to any quartermaster, or
other officer authorized to receive the same. The possession of any such clothes, arms, military outfits, or accoutrements, by any person not a soldier or officer of the
19 Op. Atty. Gen. P. I., Oct. 20, 1913.
2027 Phil. 354 (1914).




404


PHILIPPINE GOVERNMENT


United States shall be presumptive evidence of such a sale,
barter, exchange, pledge, loan, or gift."
The Court of First Instance, after saying that the
classification of constitutional provisions finds its counterpart in Federal legislation, continued:
"Some of it (Federal legislation) is in force through
the whole territory of the United States; other provisions
are of limited or local application. By section 1891 above
quoted, Congress has made the entire Federal system of
laws applicable to the incorporated territories and has
later said that this particular mode of extension shall not
apply to the Philippines. But this is far from constituting
a declaration that 'the Constitution and the laws of the
United States do not apply in the Philippines' in order that
it may have validity here. The provision of the Philippine Bill merely renders inapplicable a certain blanket extension of Federal laws; it does not exclude other modes
of extension or withhold force from Federal legislation
inherently applicable here though not expressly extended.
"Now, section 3748 of the United States Revised Statutes appears to be intended to have universal application.
It authorized the seizure of the property mentioned 'wherever found by any officers of the United States, civil or
military.' It would seem to govern the Army wherever it
may be stationed, and it would be strange indeed, if this
Archipelago, where so large a part of the Army is on duty
under orders, were exempt from its provisions." (Cases
cited by the court in footnotes.)
On appeal, the Supreme Court affirmed judgment,
Moreland J. dissenting. The Court, speaking through
Mr. Justice Trent, asked-Because section 1891 of the
Revised Statutes was declared inapplicable to this country, does it necessarily follow that no provision of the
Constitution nor any law of Congress has force and effect
in the Philippines unless expressly extended and made




ORGANIC LAW


405


applicable to them by Congress? The extension of a provision of the Constitution was not in question. "Is it true
that only those laws of the United States specifically extended to these Islands by Congress have force and effect
here?" The Court held:
"Laws for the creation, regulation, and maintenance of
the Army, not specifically limited to certain districts, are
of nation-wide application and extend to all territory
under the jurisdiction of the United States. Subsequent
laws of Congress organizing territorial governments do
not repeal such laws by implication.
"Section 3748 of the Revised Statutes, conferring upon
United States Army officers the power to seize military
equipment found in possession of others than soldiers
when title has not been legally acquired through the Government of the United States, has force and effect in these
Islands, notwithstanding the fact that section 1891 of the
Revised Statutes, providing for a blanket extension of the
Constitution and laws of the United States to all territories, is made inapplicable to the Philippine Islands by
section 1 of the Act of July 1, 1902 (The Organic Act of
the Philippine Islands). Section 3748 was enacted to prevent the disposal by soldiers of equipment furnished them
while yet serviceable-a widespread practice which had
caused unnecessary expenditure for the maintenance of
the Army and tended to impair its efficiency. The purpose
in prohibiting a blanket extension of the Constitution and
laws of the United States to the Philippine Islands was
solely to permit the establishment of a form of territorial
government better adapted to conditions here than would
have been the result by a wholesale extension of the Constitution and laws of the United States. Such object did
not conflict with the subject matter of section 3748. To
so hold would equally involve other general legislation
relating to the Army which has never been specially ex



406


PHILIPPINE GOVERNMENT


tended to these Islands, as, for instance, the Articles of
War.
"Both the Army and the Government of the Philippine
Islands were created by Congress to serve the country in
widely different capacities. The Army was created for a
special service which it may be called upon to perform in
any portion of the country. The Government of the Philippine Islands was created with the broad and general
powers of civil government, restricted to a particular portion of territory. It is not to be taken by implication that
Congress, in creating the latter, intended to impair the
efficiency of laws relating to the former which had received the most careful attention at an earlier date." (Syllabus.)
The decision in the Tan Te v. Bell case finds some support in opinions of the Federal Courts.2' Thus Mr. Chief
Justice Waite, speaking of the prohibition of the United
States Revised Statutes against bigamy, said it prescribed
"a rule of action for all those residing in the Territories,
and in places over which the United States have exclusive
control." 22 Besides in the opinion of the United States
Supreme Court in the case of Grafton v. United States 23
it was held that the articles of war embodied in an Act of
Congress have force and effect in the Philippines,
although never specifically extended.
We therefore know that the laws of wvar, and at least
one section of the Revised Statutes enacted for the protection of the Army, have followed this agency of national
sovereignty to the Philippines and have consequently in21 In re Thomas (1897) 82 Fed. 304, 309; Ex Parte Siebold
(1880) 100 U. S. 371, 374, 25 L. Ed. 717; Wisconsin Central
Railroad Co. v. Price County (1890) 132 U. S. 496, 504, 33 L. Ed.
687; In re Neagle (1890) 135 U. S. 1, 34 L. Ed. 55. See also Forbes
v. Chuoco Tiaco (1910) 16 Phil. 534, 558.
22 Reynolds v. U. S. (1878) 98 U. S. 145, 25 L. Ed. 244.
2 206 U. S. 333, 51 L. Ed. 1084 (1907).




ORGANIC LAW


407


herent force and effect in these Islands without express
extension by Congress. What other laws of Congress are
in the same class is uncertain.
~ 109. Resultant rules.-The measure of the powers of the Government of the Philippine Islands and the
limitations thereon are determined by the following rules:
1. Those provisions of the United States Constitution
of universal application, as the Thirteenth Amendment
which may operate in the Philippines; 2. Those treaties
between the United States and foreign powers, particularly those of local importance, as the Treaty of Paris;
3. Those Orders of the President and those Resolutions
and Acts of Congress which have been formally and expressly extended to the Philippines; 4. Those Acts of the
Philippine Commission which United States statutes have
made organic laws; 5. Those Acts of Congress of universal application, as certain provisions concerning the
United States Army which have inherent effect in the
Philippines. The first rule has the weight of judicial dicta
behind it. The second rule is backed by no particular
authority but is incontestable. The third rule is generally
accepted. The two last rules are made authoritative by
decisions of the Supreme Court of the Philippines.
~ 110. The Philippine Bill,2' the Act of Congress
of July 1, 1902, has been for many years the most important of the Organic Laws. A number of later Congressional Acts have amended or repealed its provisions.25
One of these was the Cooper Law of February 6, 1905,
2432 Stat. at L. Pt. 1, p. 691; Vol. 35 Cong. Rec. 57th Cong. 1st
sess.
25 Sec. 4 by Act of March 23, 1912; sec. 7 by Acts of Feb. 27,
1909, and Feb. 15, 1911; sec. 10 by U. S. Judicial Code, sec. 248;
secs. 22, 23, 24, 25, 29, 31, 36, 37, 39, 53, 58, 66 by Act of Feb. 6,
1905; sec. 77 by Act of March 2, 1903, sec. 4; and sec. 78 repealed
by Act of March 2, 1903, sec. 13.




408


PHILIPPINE GOVERNMENT


enacted "to provide for the more efficient administration
of Civil Government in the Philippine Islands."
The Philippine Bill was the composite of the reports of
two Philippine Commissions, the work of the War Department, hearings before Committees of Congress, and
legislative conferences.26 The minority of the House
26 On January 7, 1902, Mr. Lodge, of Massachusetts, introduced
in the Senate a bill (S. 2295) "Temporarily to provide for the
administration of the affairs of civil government in the Philippine
Islands, and for other purposes," which was referred to the Committee on the Philippines. On the same date Mr. Cooper, of Wisconsin, introduced in the House of Representatives a bill for like
purposes, which was referred to the Committee on Insular Affairs.
March 31, the Senate bill, with amendments, was reported by
Mr. Lodge, who submitted a report on behalf of the majority. On
June 2 the bill was ordered to be printed as amended in Committee
of the Whole, and it passed the Senate on June 3.
June 4, the bill as it passed the Senate was received in the House
of Representatives, and was referred to the Committee on Insular
Affairs.
June 14, the Senate bill was reported from the Committee on
Insular Affairs with all after the enacting clause stricken out, and
the House bill (H. R. 13445), as an amendment in the nature of a
substitute therefor, which, with a report by Mr. Cooper, was ordered
to be printed.
On June 26 the House bill, as a substitute for the Senate bill,
passed the House of Representatives.
The action of each House of Congress, in passing a distinctive
bill for the government of the Philippine Islands, was submitted
to a conference committee, representing the Senate and the House
of Representatives. On June 30 Mr. Lodge presented an agreement
of the conference committee, the Senate receded from its disagreement to the amendment of the House (the House substitute
bill), and agreed to the same with an amendment. Mr. Cooper
presented the agreement of the conference committee to the House,
which agreed to the same. The conference committee report was
concurred in by both Houses of Congress, and the bill was approved by the President July 1, 1902. Gazetteer of the Philippine
Islands, p. 211; Willis, Our Philippine Problem, pp. 33-39; Jacob
Gould Schurman, Philippine Affairs, A Retrospect and Outlook,
pp. 37, 38; Kalaw, The Case for the Filipinos, Ch. VII.




ORGANIC LAW


409


Committee on Insular Affairs reported "a Bill to establish
a stable and autonomous government in the Philippines
and for other purposes." The report stated that "The
theory upon which this substitute measure is framed is
that there should be conferred upon them      (the Filipino
people) for a period of eight years the largest possible
share in the government of themselves and in the conduct of their affairs consistent with our safety and best
interests and our duty and obligations to the nations of
the world, in order to fit them for that absolute independence and self-government to which the minority believe them entitled." A substitute bill "To promote the
welfare and establish the independence of the Philippine
Islands" was also offered in the Senate by the minority of
the Committee on the Philippines. Various amendments
were likewise presented. The debate showed more of a
desire to discuss Philippine policy than to justify the provisions of the bill.
The Act, as made a law,27 differed considerably from
the Acts organizing the governments in Porto Rico and
Hawaii. It partakes but little of the character of a constitutional act.8 Those provisions which one would nat27 See McKinley, Island Possessions of the United States, p. 253;
Willoughby, Territories and Dependencies of the United States, pp.
191-200. Sections of the Philippine Bill have been construed a
number of times by the courts and executive officials.
28 However, the Supreme Court speaks of the Philippine Bill
as "the constitution of the Philippine Islands." Conchada v. Director of Prisons (1915) XIII O. G. 1478-"the real constitution
of the United States government in the Philippine Islands." U. S. v.
Pompeya (1915) XIII O. G. 1684. But compare the Philippine
Bill with the definition of a constitution-A constitution may be
defined as that fundamental law of a state which contains the
principles upon which government is founded, regulates the division of sovereign powers, and directs to what persons each of
these powers is to be intrusted and the manner of its exercise.
Bouvier's Law Dictionary; 8 Cyc. 714, 715, citing cases and author



410


PHILIPPINE GOVERNMENT


urally expect to find, establishing the framework of government, limiting governmental powers, and providing
for the political organization of the executive, legislative,
and judicial branches are lacking, except that an Assembly
is authorized for a future date. The existing outlines of
general and local governments were accepted, and the constructive work of the President, the Military Governors,
and the Commission was confirmed. The bill of rights
was extended. But most of the sections concern general
legislation, on such subjects as commerce, the sale and
lease of the public lands, the utilization of the forests,
granting of mining claims, municipal bonds, franchises,
etc.
The Philippine Autonomy Act leaves much of the Philippine Bill intact.
~ 111. The Philippine Autonomy Act,28a the Act
of Congress of August 29, 1916, is more nearly an organic
constitutional Act for the Philippines than the Philippine
Bill. It is the result of nearly three years of legislative
juggling by Congress. The debate was on most occasions
apathetic, and at times showed a lamentable ignorance of
Philippine affairs.
The original Jones Bill, as reported to the House of
Representatives, provided for a provisional government
with an assurance of full independence for the Philippines
on July 4, 1921. As the bill passed the house on October
14, 1914, it promised ultimate independence for the Philippines and extended the powers of internal self-government. The Senate failed to take the bill up at that session.
ities; Cooley's Constitutional Limitations 7th Ed., p. 4; 6 R. C.
L. p. 16-and with the objects of a constitution-Bryce, Studies
in History and Jurisprudence, Vol. I, pp. 229, 230.
a28 See generally, Kalaw, The Case for the Filipinos, Chs. X, XI;
Reports House Committee on Insular Affairs and Senate Committee
on the Philippines, especially House report of April 16, 1916.




ORGANIC LAW


411


On the opening of the succeeding Congress, the Senate
Committee on the Philippines reported a Philippine Bill
differing slightly from the House bill. During the debate
in the Senate what is known as the Clarke Amendment,
granting independence in not less than two nor more than
four years with a further provision that the President
might extend the time and again submit the subject to
Congress, was attached and passed the Senate in that
form through the deciding vote of the Vice President.
The House rejected the Senate bill with the Clarke
Amendment. Thereupon a conference committee of the
two chambers agreed upon a bill and in that form it
passed pro forma and was signed by the President.
The Act besides enunciating a Philippine policy is not
essentially different from a constitution. There is a frame
work of government, a bill of rights, and certain positive
powers or prohibitions.
~ 112. Other Organic Laws.-Without getting out
of the field of usual acceptance, let us begin with mention
of the Treaty of Paris.9 Then follows chronologically
the President's Instructions to the Commission of April
7, 1900, which, because of section 1 of the Philippine Bill,
providing that the Islands "shall continue to be governed
as thereby (in the Instructions) and herein (the Philippine Bill) provided," is also an organic law.80 Acts of
Congress, having special reference to the Philippines, in
addition to the Philippine Bill and the Philippine Autonomy Act, concern the following important subjects: Chinese immigration, the Philippine Constabulary, extradition, coinage, government bonds, railroad construction,
tariff, false or spuriously stamped articles of merchandise,
immigration of aliens, an agricultural bank, shipping,
29 See sec. 66 supra.
80 So held in Severino v. Governor-General (1910) 16 Phil. 366,
382. See sec. 72 supra.




412


PHILIPPINE GOVERNMENT


trade-marks, copyrights, national defense secrets, income
taxes, and opium. Various miscellaneous sections of the
Revised Statutes of the United States have been carried
to the Islands thereby.
A list of the live organic laws, believed to be complete,
is appended. Some laws now partially or totally obsolete
are included for historical reasons.
List of Organic Laws of the Philippine Islands.
United States Constitution. Possibly the Thirteenth
Amendment.
Treaties.  Probably all treaties between the United
States and foreign countries, but as most importantTreaty of Paris.-Treaty between the United States
and Spain of December 10, 1898.
Protocol of Agreement of March 29, 1900, extending,
as to the Philippine Islands, for six months from April 11,
1900, the period fixed in Article IX of the Treaty of Paris
during which Spanish subjects, natives of the Peninsula,
might declare their intention to retain their Spanish nationality.
Treaty with Spain of November 7, 1900, for the cession
of certain outlying islands of the Philippines.
Universal Postal Convention of May 26, 1906, concluded between Germany and German Protectorates,
United States of America and the Island Possessions of
the United States of America, Argentine Republic, Austria, Belgium, Bolivia, Bosnia-Herzegovina, Brazil, Bulgaria, Chili, Chinese Empire, Republic of Colombia,
Congo Free State, Empire of Corea, Republic of Costa
Rica, Crete, Republic of Cuba, Denmark and Danish Colonies, Dominican Republic, Egypt, Ecuador, Spain and
Spanish Colonies, Ethiopian Empire, France, Algeria,
French Colonies and Protectorates of Indo-China, the
whole of the other French Colonies, Great Britain and




ORGANIC LAW


413


various British Colonies, British India, the Commonwealth of Australia, Canada, New Zealand, British Colonies of South Africa, Greece, Guatemala, Republic of
Hayti, Republic of Honduras, Hungary, Italy and the
Italian Colonies, Japan, Republic of Liberia, Luxemburg,
Mexico, Montenegro, Nicaragua, Norway, Republic of
Panama, Paraguay, Netherlands, the Dutch Colonies,
Peru, Persia, Portugal and Portuguese Colonies, Roumania, Russia, Salvador, Servia, Kingdom of Siam, Sweden, Switzerland, Tunis, Turkey, Uruguay, and United
States of Venezuela.
Orders of the President and Acts of Congress.
The President's Instructions to the Commission, dated
April 7, 1900. (Mostly obsolete.)
Order of the President creating the Office of Civil
Governor for the Philippine Islands, dated June 21, 1901.
(Obsolete.)
Order of the President creating the Office of ViceGovernor, dated October 29, 1901. (Obsolete.)
Act of Congress of February 2, 1901.-An Act to increase the efficiency of the permanent military establishment of the United States (sec. 36, Philippine Scouts),
in connection with Act of May 16, 1908, c. 171.
Act of Congress of March 8, 1902.-An Act temporarily to provide revenue for the Philippine Islands, and for
other purposes. (Mostly obsolete.)
Act of Congress of March 22, 1902.-Acknowledgements of deeds.
Act of Congress of April 29, 1902.-An Act to prohibit the coming into and to regulate the residence within
the United States, its Territories, and all territory under
its jurisdiction, and the District of Columbia, of Chinese
and persons of Chinese descent.
Act of Congress of July 1, 1902, "The Philippine Bill."




414


PHILIPPINE GOVERNMENT


-An Act temporarily to provide for the administration of
the affairs of civil government in the Philippine Islands,
and for other purposes. Amepded.
Act of Congress of January 30, 1903.-An Act to promote the efficiency of the Philippine Constabulary, to
establish the rank and pay of its commanding officers, and
for other purposes.
Act of Congress of February 9, 1903.-An Act to provide for the removal of persons accused of crime to and
from the Philippine Islands for trial.
Act of Congress of March 2, 1903.-An Act to establish a standard of value and to provide for a coinage system in the Philippine Islands. Amended by Act of Congress of June 23, 1906.
Act of Congress of February 6, 1905.-An Act to
amend an Act approved July first, nineteen hundred and
two, entitled "An Act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes," and to amend an
Act approved March eighth, nineteen hundred and two,
entitled "An Act temporarily to provide revenue for the
Philippine Islands, and for other purposes," and to amend
an Act approved March second, nineteen hundred and
three, entitled "An Act to establish a standard of value
and to provide for a coinage system in the Philippine
Islands," and to provide for the more efficient administration of civil government in the Philippine Islanli,
and for other purposes.
Act of Congress of February 6, 1905.-An Act to extend certain provisions of the Revised Statutes of the
United States to the Philippine Islands (Extradition).
Act of Congress of February 20, 1905.-An Act to
authorize the registration of trade-marks used in commerce with foreign nations or among the several States
or with Indian tribes, and to protect the same. Amended




ORGANIC LAW


415


by Act of Congress of May 4, 1906, an Act to amend the
laws of the United States relating to the registration of
trade-marks; by Act of Congress of March 2, 1907, an
Act to amend sections five and six of an Act entitled "An
Act to authorize the registration of trade-marks used in
commerce with foreign nations or among the several
States or with Indian tribes, and to protect the same;" and
by Act of Congress of February 18, 1909, an Act to
amend the laws of the United States relating to the registration of trade-marks.
Act of Congress of June 13, 1906.-An Act forbidding
the importation, exportation, or carriage in interstate
commerce of falsely or spuriously stamped articles of
merchandise made of gold or silver or their alloys, and
for other purposes.
Act of Congress of June 28, 1906.-An Act to amend
section 2844 of the Revised Statutes of the United States,
and to provide for an authentication of invoices of merchandise shipped to the United States from the Philippine
Islands. (Held to be in force by the Insular Collector of
Customs, Letter to Author, March 14, 1916. See also
Customs Administrative Circular No. 715.)
Act of Congress of June 30, 1906.-An Act for preventing the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods,
drugs, medicines, and liquors, and for regulating traffic
therein, and for other purposes.
Act of Congress of February 20, 1907.-An Act to regulate the immigration of aliens into the United States and
any waters, territory, or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone.
Act of Congress of March 4, 1907.-An Act to provide
for the establishment of an agricultural bank in the Philippine Islands.
Act of Congress of March 24, 1908.-An Act to carry




416


PHILIPPINE GOVERNMENT


into effect the international convention of December
twenty-first, nineteen hundred and four, relating to the exemption in time of war of hospital ships from dues and
taxes on vessels.
Act of Congress of April 29, 1908.-An Act to repeal
an Act approved April thirtieth, nineteen hundred and six,
entitled "An Act to regulate shipping in trade between
ports of the United States and ports or places in the Philippine Archipelago, between ports or places in the Philippine Archipelago, and for other purposes," and for other
purposes.
Act of Congress of May 11, 1908.-An Act to increase
the membership of the Philippine Commission by one
member, and for other purposes. (Obsolete.)
Act of Congress of May 22, 1908, in connection with
Act of February 26, 1907. Salary of Resident Commissioners.
Act of Congress of May 28, 1908.-Instruction of Filipinos at U. S. Military Academy.
Act of Congress of February 27, 1909.-An Act to
amend an Act approved July first, nineteen hundred and
two, entitled "An Act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes." (Appropriations.) (Obsolete.)
Act of Congress of March 4, 1909.-An Act to amend
and consolidate the Acts respecting copyright.
Act of Congress of March 4, 1909.-Criminal Code,
secs. 138, 139 (allowing prisoner to escape).
Joint Resolution, fixing the terms of court in the Philippine Islands, of April 9, 1910, No. 19.
Act of Congress of February 15, 1911.-An Act providing for the quadrennial election of members of the
Philippine Assembly and Resident Commissioners to the
United States, and for other purposes. (Obsolete.)




ORGANIC LAW


417


Act of Congress of March 1, 1911.-An Act to protect
the dignity and honor of the uniforms of the United
States.
Act of Congress of March 3, 1911.-U. S. Judicial
Code, sec. 248, U. S. Stats. at L. 1910-11, p. 1158-appeals to U. S. Supreme Court. (Obsolete.)
Act of Congress of March 3, 1911.-An Act to prevent
the disclosure of national defense secrets.
Act of Congress of March 23, 1912.-An Act to amend
an Act approved July first, nineteen hundred and two.
(Providing for acquisition of Philippine citizenship.)
(Obsolete.)
Act of Congress of March 1, 1913.-An Act divesting
intoxicating liquors of their interstate character in certain cases.
Act of Congress of October 3, 1913.-An Act to
reduce tariff duties and to provide revenue for the Government and other purposes. (Income and internal revenue Taxes; Tariff, modifying Act of Congress of August
5, 1909.)
Act of Congress of December 23, 1913.-C. 6, sec. 15
(Deposit of government funds.)
Act of Congress of December 17, 1914.-An Act to
provide for the registration of, with collectors of internal
revenue, and to impose a special tax upon all persons who
produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves,
their salts, derivatives, or preparations, and for other
purposes.
Act of Congress of March 4, 1915.-An Act ratifying
the internal revenue tax law of the Philippine Legislature. (Act 2432.)
Act of Congress of August 16, 1916.-An Act to declare the purpose of the people of the United States as
to the future political status of the people of the PhilP. I. Govt.-27.




418


IPHILIPPINE GOVERNMENT


ippine Islands, and to provide a more autonomous government for those Islands.
Acts of the Philippine Legislature.  At least portions
of Act 136.
Quarantine Laws Enacted by Congress Given Full Effect in Philippine Islands.-The provisions of the Act of
Congress approved February fifteenth, eighteen hundred
and ninety-three, entitled "An Act granting additional
quarantine powers and imposing additional duties upon
the Marine-Hospital Service," and all subsequent Acts
of Congress on the same subject and amendatory thereof,
and all rules and regulations heretofore or hereafter prescribed by the Secretary of the Treasury of the United
States under such Acts, shall be given full force and effect in the Philippine Islands, so far as applicable. (Administrative Code of the Philippines, sec. 941.)
The Organic Laws can be found in the Philippine
Public Laws, U. S. Statutes at Large, U. S. Compiled
Statutes of 1913, and the Compilation of the Acts of Congress, Treaties and Proclamations.
~ 113. The Philippine Constitution,1 —Prophecy is
dangerous. May we not, however, venture to suggest a
few fundamental principles which should, and undoubtedly will, govern future adoption of a Philippine
Constitution?
The constitution will be written. The advantages of
such a rigid constitution under Philippine conditions will
vastly overbalance the disadvantages. The form, it goes
81 Read Bryce, Studies in History and Jurisprudence; Janmison
on Constitutional Conventions; Borgeaud, Adoption and Amendment of the Constitutions in Europe and America; Bancroft, History of the Constitution of the United States; Dicey, The Law
of the Constitution; Hart, Actual Government; Bryce, The American Commonwealth; Tucker on the Constitution; Cooley's Constitutional Law; 6 R. C. L. pp. 1 et seq.; 8 Cyc. pp. 714 et seq.; Kalaw,
Teorias Constitucionales; Kalaw, Documentos Constitucionales;
Writings of Mabini.




ORGANIC LAW


419


without saying, will be Republican. Consequently, a constitutional convention, called pursuant to action by the
Philippine Legislature and the Governor-General, composed of delegates elected by popular vote from among
the best men of the Islands, irrespective of party, race,
or creed, will frame it. The people will then vote directly, approving or rejecting the labor of their servants
The experience of all ages and of all peoples will be
made use of. The ideal will be to register the totality
of centuries of struggles for liberty. No constitution can
hope to be original. Especially will the Malolos Constitution, the Spanish Constitution, the Cuban Constitution, the constitutions of the South American Republics, and the Constitution of the United States be carefully studied. Parts of the Malolos Constitution will now
be found inappropriate. The Spanish Constitution will
influence methods of thought more than substance. The
Constitution of the Republic of Cuba so markedly similar in history, traditions, and status will furnish valuable
lessons. The constitutions of South American countries
will appeal strongly to sentiment because of a sort of
spiritual kinship between them and the Philippines. The
Constitution of the United States will be made the basis
of many provisions, in order to demonstrate Philippine
appreciation of American effort and institutions, in order
to secure continuity of jurisprudence, because familiar
to the leading publicists of the Islands and the younger
generation, and because universally recognized as the
leading constitution of the world. The extent of American constitutional influence will depend to a great extent
on the date of independence-increasing proportionately
with the length of American sovereignty. Particularly
will the bill of rights, won with so much blood on the
field of battle by Englishmen, made the bulwark of American liberties, and now the heritage of the Filipino people,




420


PHILIPPINE GOVERNMENT


be retained.82 But even if the American Constitution be
"the most wonderful work ever struck off at a given time
by the brain and purpose of man," it is not heresy to
suggest that the mistake of a slavish copying of American precedent will not be made. Over a century of experience has pointed out defects in the American constitutional system. For example, as opposed to the American Constitution, there will be close relations between
legislation and administration, a budget system, ministerial responsibility, election of a President for six years
with no re-election permitted, and a unitary, not a federal,
system. Further, it is merely a truism to state that what
may be good for the United States may.not be found
equally valuable for the Philippines. Finally, the writings
of the ablest statesmen of the country and the present
organic law, particularly the basic principles found in
the next chapter which we have endeavored to describe
with so much labor expressly for this purpose, will constitute  a  direct  and  potent  source   for  the  new
constitution.
The constitution will conform to the requisites of a
good written constitution. It will be broad, brief, definite, stable, immutable, and paramount. "The constitution of a state is stable and permanent, not to be worked
upon by the temper of the times, nor to rise and fall
with the tide of events; notwithstanding the competition
of opposing interests and the violence of contending parties, it remains firm and immovable, as a mountain amidst
the strife of storms, or a rock in the ocean amidst the
raging of the waves." 88 It will enumerate, but not de82 One project prepared by a prominent Filipino leader is known
to contain a provision to the effect that in the event of the United
States granting independence to the Philippines, the present Bill of
Rights shall be considered fundamental and definitely established
as an integral part of the Constitution of the Philippine Islands.
88Van Horne v. Dorrance (1795) 2 Dall. 304, 309. "That the




ORGANIC LAW


fine. It will be alterable only by special process. It will
contain within itself security against disorder and revolution. It will shield the people against the assumption
of arbitrary power. It will be suitable to the circumstances, desires, and aspirations of the people. The constitution will be the supreme law of the land. A bicameral
legislature will stop the passage of hasty legislation. The
judges will serve during good behavior. The courts can
declare statutes violating constitutional provisions unconstitutional.  Sovereignty will lie in the people.  The
objects of the constitution will be to establish and maintain a permanent form of government under which the
work of the State can be efficiently carried on, to assign
to the three departments their respective poXwers and
duties, to provide security for the rights of the individual
citizen, and to strengthen the cohesiveness of the nation.
In other words, there will be three distinct parts: the
framework of the government, the bill of rights, and the
schedule.
A  perfect constitution need not be expected.     What
Hamilton quoted from    Hume to prove such a constitution impossible, will be as true for the Philippines as
elsewhere: "The judgment of many must unite in the
work; experience must guide their labors; time must
bring it to perfection; and the feeling of inconvenience
must correct the mistakes which they inevitably fall into
in their first trial and experiment." And to be successpeople have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to
their own happiness, is the basis on which the whole American
fabric has been erected. The exercise of this original right is a
very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme,
and can seldom act, they are designed to be permanent." Marshall,
C. J., in Marbury v. Madison (1803) 1 Cranch 137, 2 L. Ed. 60.




422          PHILIPPINE GOVERNMENT
ful the constitution must be considered not as the cause
but as the consequence of personal and political freedom.
When the constitution, which we have dared to describe, shall be framed and adopted, when commentaries
thereon shall be indicted, and when the courts shall assume to construe its provisions, then the existing organic
law will be valuable mainly by virtue of authority and as
a cultural chapter in Philippine constitutional history.




ORGANIC LAW                423
REPRESENTATIVE AUTHORITIES.
National Bank v. County of Yankton (1880) 101 U. S.
129, 25 L. Ed. 1046.
Tan Te v. Bell (1914) 27 Phil. 354.
Barrameda v. Moir (1913) 25 Phil. 44.
Vol. 35, Congressional Record, Philippine Bill.
Vols 51 et seq., Congressional Record, Philippine Autonomy Act.
Maximo M. Kalaw, The Case for the Filipinos (1916)
Chs. VII, X, XI.
Acts of Congress pertaining to the Philippines, printed
in Philippine Public Laws, U. S. Statutes at Large, and
U. S. Compiled Statutes.




CHAPTER 9.


BASIC PRINCIPLES.
~ 114. The Philippine bill of rights.
115. Rights withheld.
116. "A government of laws and not of men."
117. Division of powers.
118. Delegation of powers.
'119. Irrepealable laws prohibited.
120. Legislative privileges.
121. Rule of the majority.
122. Law of public officers.
123. Interstate comity.
124. Aliens.
125. Citizenship.
126. Immunity of government from suit.
127. Taxation, eminent domain, and police power explained.
128. Taxation.
129. Eminent domain.
130. Police power.
131. Various fundamental privileges and immunities.
132. Rights of accused in criminal prosecutions.
133. Suspension of the writ of habeas corpus.
134. Ex post facto laws.
135. Bills of attainder.
136. Excessive bail, excessive fines, and cruel and unusual punishments.
137. Unreasonable searches and seizures; warrants.
138. Treason.
139. Imprisonment for debt.
140. Due process of law and equal protection of the laws.
141. Slavery, involuntary servitude, and peonage.
142. Freedom of speech and press; assembly and petition.
143. Religious liberty.
144. Local government
145. Suffrage.
146. Education.
424




BASIC PRINCIPLES


425


147. Subject and title of bills.
148. The enacting clause.
149. Obligation of contracts.
150. Titles of nobility; presents, etc., from foreign states.
151. Law of primogeniture.
152. Polygamy.
153. Appropriations.
154. Indebtedness.
~ 114. The Philippine bill of rights.-As we have
heretofore noticed, the Constitution of the United States
does not as a whole apply ex propio vigore to the Philippine Islands. Nevertheless, all the most significant of
the American Bill of Rights, declaratory of the foundation rights of the people, are here effective both in legislative phraseology and in judicial construction.
President McKinley, in his Instructions to the Philippine Commission, imposed "these inviolable rules" upon
every branch and division of the Government of the
Philippine Islands. I-e said that "the Commission should
bear in mind, and the people of the Islands should be
made plainly to understand, that there are certain great
principles of government which have been made the
basis of our governmental system, which we deem essential to the rule of law and the maintenance of individual freedom, and of which they have, unfortunately,
been denied the experience possessed by us; that there
are also certain practical rules of government which
we have found to be essential to the preservation of these
great principles of liberty and law, and that these principles and these rules of government must.be established
and maintained in their Islands for the sake of their liberty and happiness, however much they may conflict with
the customs or laws of procedure with which they are
familiar. It is evident that the most enlightened thought
of the Philippine Islands fully appreciates the importance
of these principles and rules, and they will inevitably




426


PHILIPPINE GOVERNMENT


within a short time command universal assent." 1 Congress included these guaranties of constitutional liberty
in the Philippine Bill and re-enacted them with a fewv
changes in the Philippine Autonomy Act. The parallel
columns which we use at the head of the sections shows
graphically that for some unexplained reason the existing
Philippine Bill of Rights differs slightly in language but
not in substance from the bill of rights contained in the
United States Constitution and State constitutions. Other
basic principles upon which the government of the United
States and other governments rest, although not expressly a part of the written law, are, because of their
inherent nature, just as much a part of the Philippine
governmental edifice.  The result in the words of Mr
Justice Trent of the Supreme Court of the Philippine
Islands is that "these fundamental principles
have been since the organization of the Philippine Commission, the law of the land, and upon them, has been
reared our present Civil Government in these Islands." 2
Mr. Justice Day, in an exhaustive opinion for the United
States Supreme Court in the case of Kepner v. United
States said:
"That it was the intention of the President in the instructions to the Philippine Commission to adopt a wellknown part of the fundamental law of the United States,
and to give much of the beneficent protection of the bill
of rights to the people of the Philippine Islands, is not
left to inference.
"These words (of the President's Instructions) are not
strange to the American lawyer or student of constitu1 "The significance of the document granting constitutional liberties to the Filipino people is as profound as that of the Magna
Charta or the Declaration of Independence." Wright, A Handbook of the Philippines, p. 106. For the origin of the Philippine
Bill of Rights see Kalaw, Teorias Constitucionales, pp. 5, 6.
2 Severino v. Governor-General (1910) 16 Phil. 366, 383.




BASIC PRINCIPLES


427


tional history.  They are the familiar language of the
Bill of Rights, slightly changed in form, but not in substance, as found in the first nine amendments to the
Constitution of the United States, with the omission of
the provision preserving the right to trial by jury and
the right of the people to bear arms, and adding the prohibition of the thirteenth amendment against slavery or involuntary servitude except as a punishment for crime, and
that of article 1, section 9, to the passage of bills of attainder and ex post facto laws. These principles were not
taken from the Spanish law; they were carefully collated
from our own Constitution, and embody almost verbatim
safeguards of that instrument for the protection of life
and liberty.
"When Congress came to pass the act of July 1, 1902,
it enacted, almost in the language of the President's instructions, the Bill of Rights of our Constitution. In
view of the expressed declaration of the President, followed by the action of Congress, both adopting, with little
alteration, the provisions of the Bill of Rights, there
would seem to be no room for argument that in this form
it was intended to carry to the Philippine Islands those
principles of our Government which the President declared to be established as rules of law for the maintenance of individual freedom, at the same time expressing regret that the inhabitants of the Islands had not
theretofore enjoyed their benefit." '
Although the statement may surprise some American
readers, there can also be found scattered through the
195 U. S. 100 (1904) 11 Phil. 669, 690, 692. "The law is perfectly well settled that the first ten amendments to the Constitution,
commonly known as the 'Bill of Rights,' were not intended to lay
down any novel principles of government, but simply to embody
certain guaranties and immunities which we had inherited from
our English ancestors." Robertson v. Baldwin (1897) 165 U. S.
275, 281, 41 L. Ed. 715.




428


PHILIPPINE GOVERNMENT


Spanish Codes in force in the Philippines many provisions declaratory or protective of personal rights which.
in effect, correspond largely to the ideals of American
constitutional law.  A  keen critic, however, frankly
admits that "the most superficial comparison of the old
with the recent laws shows that personal rights have been
strengthened with more effective guaranties, the benefits
of which had never before been enjoyed." 4    A comparison of the existing Bill of Rights with that of the
Malolos Constitution also shows a difference in phraseology but not in substance.
What is most noteworthy is the fact that these great
principles of American liberty and democracy carried with
tlem  the even greater opinions of the courts.  In the
Kepner case, Mr. Justice Day, after analyzing the Philippine Bill of Rights and speaking of "the intention of
Congress to carry some at least of the essential principles
of American constitutional jurisprudence to these Islands
and to engraft them upon the law of this people, newly
subject to our jurisdiction," propounded the following
rhetorical question: "How can it be successfully maintained that these expressions of fundamental rights,
which have been the subject of frequent adjudication in
the courts of this country, and the maintenance of which
has been ever deemed essential to our Government, could
be used by Congress in any other sense than that which
has been placed upon them in construing the instrument
from which they were taken?" 5 To ascertain the meaning of a phrase in the Bill of Rights the Court said it
was necessary to refer to the common law from which
the phrase was taken. Stated as a proposition, the Supreme Court of the United States has settled that "the
4Abreu, The Blending of the Anglo-American Common Law
with the Spanish Civil Law in the Philippine Islands, III Philippine Law Review, May, 1914, pp. 290 ct seq.
5 195 U. S. 100, (1904) 11 Phil. 669, 690, 692, 694.




BASIC PRINCIPLES


429


guaranties extended by Congress to the Philippine Islands
are to be interpreted as meaning what the like provisions
meant when Congress made them         applicable to those
Islands." 6 In practically every appeal to this tribunal of
last resort, the Court has gone for authority to adjudications of similar provisions of the United States Constitution.  The Insular courts are, of course, bound by the
rule. Thus Mr. Justice Elliott, speaking for our Supreme
Court, said that: "The President and Congress framed
the government on the model with which Americans are
familiar, and which has proven best adapted for the advancement of the public interests and the protection of
individual rights and privileges. In instituting this form
of government the intention must have been to adopt the
general constitutional doctrines which are inherent in the
system." 7 The same Justice in another opinion observed
that: "Within the relation created by the Acts of Congress the general principles of American constitutional
law apply whenever they can be made applicable." a
Ordinarily, therefore, the Philippine delver after judicial lore can turn with perfect safety to the doctrines
established by American constitutional law. Since these
cases fill tome upon tome, the scope of this chapter only
permits of a use of the applicable cases coming from
the local courts or from Philippine appeals to the United
6 Serra v. Mortiga (1907) 204 U. S. 470, 11 Phil. 762, following
Kepner v. U. S. id. See also Weems v. U. S. (1910) 217 U. S.
349, 54 L. Ed. 793; Freeman v. U. S. (1910) 217 U. S. 539, 54 L.
Ed. 874; Diaz v. U. S. (1912) 223 U. S. 442, 56 L. Ed. 500; Alzua
v. Johnson (1912) 21?hil. 308, 332, and other Philippine cases.
7U. S. v. Bull (1910) 15 Phil. 7, 28.
8 Ocampo v. Cabafigis (1910) 15 Phil. 626, 632. "The primary
function of constitutional law is to ascertain the political center of
gravity of any given state. It announces in what portion of the
whole is to be found the internal sovereignty, 'suprema potestas,'
'Staatsgewalt,'... In other words, it defines the form of
government." Holland, Jurisprudence, 11th Ed., p. 365.




430


PHILIPPINE GOVERNMENT


States Supreme Court, with inclusion of a few other especially appropriate views. We group the section subjects where possible but where not possible, we follow
the easy plan of assuming the order of the legislator in
enacting the Bill of Rights.
After finishing the task of reading the sections which
follow, is it only a mere aphorism to say that we possess
a Philippine constitutional law?
~ 115. Rights withheld.-The President and Congress withheld from the Filipino people the provisions of
the Bill of Rights of the United States Constitution preserving the right of the American people to keep and
bear arms, security of the dwelling from the quartering
of soldiers in time of peace, and trial by jury.9 The reason
for reserving the right of trial by jury Mr. Justice Day
9See Kepner v. U. S. (1904) 195 U. S. 100, 11 Phil. 669; William H. Taft, Civil Government in the Philippines, 71 Outlook, May
31, 1902, pp. 305 et seq. printed in "The Philippines," pp. 98-100;
Special Report of William H. Taft, Secretary of War, to the President on the Philippines, pp. 40, 41. The provisions of the United
States Constitution mentioned are as follows:
"A well regulated militia being necessary to the security of a
free state, the right of the people to keep and bear arms shall not
be infringed." Second Amendment.
"No soldier shall, in time of peace, be quartered in any house,
without the consent of the owner, nor in time of war, but in a
manner to be prescribed by law." Third Amendment.
"The trial of all crimes, except in cases of impeachment, shall be
by jury." Article III, sec. 2.
"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger."
Fifth Amendment.
"In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed."  Sixth
Amendment.
"In suits at common law, where the value in controversy shall




BASIC PRINCIPLES


431


said in the case of Dorr v. United States "was doubtless
due to the fact that the civilized portion of the Islands
had a system of jurisprudence founded upon the civil law,
and the uncivilized parts of the Archipelago were wholly
unfitted to exercise the right of trial by jury." 10  The
same case definitely decided that, in the absence of Congressional legislation to that end, there was no right to
demand trial by jury in criminal cases in the Philippines.
Neither is presentment of an indictment found by a grand
jury necessary."
It is not certain that the safety of the people of the
Philippines is at all endangered or that they are deprived
of any beneficent constitutional right by reason of the
non-existence of these provisions. The right to keep and
bear arms would only apply to arms used in civilized warfare, and even as to these there could be regulations providing that they shall not be carried in a concealed manner or fired within the limits of a city. Undoubtedly the
present Philippine law held valid by the Supreme Court,
requiring licenses from  the private owners of firearms
could still be applied, if the constitutional provision was
in force.12 The quartering of soldiers in private houses
in time of peace is an evil not practised in the United
States or the Philippines; and as Judge Cooley remarks
"its declaration seems to savor of idle form and cereexceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury shall be otherwise re-examined in any
court of the United States, than according to the rules of the common
law." Seventh Amendment.
10 195 U. S. 138 (1904) 11 Phil. 706, 713, affirmed in later cases.
See also in connection therewith Hawaii v. Mankichi (1903) 190
U. S. 197, 47 L. Ed. 1016, and Rasmussen v. U. S. (1905) 197 U. S.
516, 49 L. Ed. 862. Similarly, the jury system although existing
in a modified form in Spain, was never extended to the Philippines.
See Walton's Civil Law in Spain and Spanish-America, p. 498.
1 Dowdell v. U. S. (1911) 221 U. S. 325, 55 L. Ed. 753.
12 U. S. v. Villareal (1914) 28 Phil. 390.




432


PHILIPPINE GOVERNMENT


mony." 18   The most important-trial by jury-has not
proved especially successful in operation and it is even
to be doubted if it should be adopted here under any circumstance.1"    The right, fixed by statute, to demand assessors in justice of the peace courts, the municipal court
for the city of Manila, and Courts of First Instance, for
both criminal and civil cases, is in a way the equivalent
of a jury.15    Moreover, the rights withheld are more
than balanced by the granting of other rights not found
in the national Constitution but taken from state constitutions-imprisonment for debt, subject and title of bills,
the enacting clause, etc.
~ 116. "A government of laws and not of men."These words, which Rufus Choate so eloquently said,
should be spared "in their very rust" as one "would spa; e
the general English of the Bible" were placed in the Declaration of Rights of the Massachusetts Constitution of
18 Cooley's Constitutional Limitations, 7th Ed., p. 435.
14 Eusebio Lopez, Should Trial by Jury be Adopted in the Philippine Islands, 6 Philippine Law Review, January, 1915, p. 778, answers
in the negative.
16 Code of Civil Procedure, secs. 57-62, 153-161; Act 267, sec. 13;
Act 2369; Act 2520; Adm. Code, sec. 2449. "While the conditions
here are for the present unsuited to the introduction of the AngloSaxon system of jury trials, provision is made for the selection of
assessors from the residents of the municipality or province best
fitted by education, natural ability and reputation for probity to assist
in the trial of actions and to advise the judge in his determination,
and securing the right of review of the facts by a higher court in
case the assessors shall certify that in their opinion the finding
of facts and the judgment are wrong. The provisions for assessors
apply in courts of justices of the peace as well as in the courts of
first instance. This system is one that was adopted under the treaty
of Berlin for use in Samoa under the protectorate, and has long
been usefully employed in British and German colonial possessions.
The employment of assessors is useful not merely as an aid to the
judge but also as giving a greater safeguard to the parties, and as
a means of education for the people." Report of the Philippine
Commission, 1901, Vol. I, p. 88.




BASIC PRINCIPLES


433


1780 as the climax to emphatic negation against one
department exercising the powers of another-"to the
end it may be a government of laws and not of men." 16
Here is seen not merely beautiful verbiage of a famous
constitution, not merely the ultimate cause for the separation of the powers, but an axiom of representative government become part and parcel of it. The American
Government (and with it the Philippine Government)
"as has been often observed, is a government of law, and
not a government of men." 17     Under no other constitutional theory than that inherent in the system in the
United States and the Philippines, particularly with reference to the independence of departments, Mr. Justice
16 Part the First, Art. XXX. Professor Thayer giving the Massachusetts Constitution, Cases on Constitutional Law, Vol. I, pp. 381
et seq., adds this note: "It is plain that where the law is made by
one man there it may be unmade by one man; so that the man
is not governed by the law, but the law by the man, which amounts
to the government of the man, and not of the law. Whereas the
law being not to be made but by the many, no man is governed
by another man, but by that only which is the common interest;
by which means this amounts to a government of laws and not of
men." James Harrington, The Art of Lawgiving, Preface; Oceana
and Other Works, 3d Ed. 386.
"Sir," said Rufus Choate, in the Massachusetts Convention of
1853, for revising the Constitution of the State (1 Debates, 120),
"that same Bill of Rights, which so solicitously separates executive,
judicial, and legislative powers from each other, 'to the end,' —in fine
and noble expression of Harrington, borrowed from the 'ancient
prudence,' one of those historical phases of the old glorious school
of liberty of which this Bill of Rights is so full,-and which phrases
I entreat the good taste of my accomplished friends in my eye,
to whom it is committed, to spare in their very rust, as they would
spare the general English of the Bible,-'to the end it may be
a government of laws, and not of men;' that same Bill of Rights
separates the people, with the same solicitude, and for the same
reason, from every part of their actual government,-'to the end
it may be a government of laws and not of men."
17Brewer, J., in Reagan v. Farmers' Loan & Trust Co. (1894)
154 U. S. 362, 38 L. Ed. 1014.
P. I. Govt.-28.


I




434


PHILIPPINE GOVERNMENT


Elliott of the Supreme Court of the Philippines has said,
"could there be that government of laws and not of men
which is essential for the protection of rights under a
free and orderly government." 18
So long as the imperfections of mankind necessitate
the over-lordship of commands, laws must be made to be
obeyed by all, if free institutions are to continue. No
man-no set of men-no party-can wantonly be permitted to set the law at naught. The humblest citizen
must realize that he is protected in his rights from the
arbitrary will of the highest official. The most powerful
man must realize that he has to bow before the majesty
of the law. Even a judge of the most exalted court,
Mr. Justice Carson has said is not "above or beyond the
law which it is his high office to administer."19 Attorneys especially must ever be the fearless vindicators of
individual rights.
Mr. Justice Matthews of the Supreme Court of the
United States has well said:
"When we consider the nature and the theory of our
institutions of government, the principles upon which they
are supposed to rest, and review the history of their development, we are constrained to conclude that they do
not mean to leave room for the play and action of purely
personal and arbitrary power. Sovereignty itself is, of
course, not subject to law, for it is the author and source
of law; but in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all
government exists and acts. And the law is the definition
and limitation of power. It is, indeed, quite true, that there
must always be lodged somewhere, and in some person
or body, the authority of final decision; and in many
l U. S. v. Bull (1910) 15 Phil. 7, 28.
9 Alzua v. Johnson (1912) 21 Phil. 308, 348




BASIC PRINCIPLES


435


cases of mere administration the responsibility is purely
political, no appeal lying except to the ultimate tribunal
of the public judgment, exercised either in the pressure
of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by
those maxims of constitutional law which are the monuments showing the victorious progress of the race in
securing to men the blessings of civilization under the
reign of just and equal laws, so that, in the famous
language of the Massachusetts Bill of Rights, the government of the commonwealth 'may be a government of
laws and not of men.' For, the very idea that one man
may be compelled to hold his life, or the means of living,
or any material right essential to the enjoyment of life,
at the mere will of another, seems to be intolerable in
any country where freedom prevails, as being the essence
of slavery itself." 20
Mr. Justice Miller said in another case:
"No man in this country is so high that he is above
the law. No officer of the law may set the law at defiance with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law,
and are bound to obey it.
"It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound
to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which
it gives." 21
Shall the Government of the Philippine Islands be a
Government of Men or a Government of Laws? If a
Government of Men whatever be decided as to its form,


20 Yick Wo v. Hopkins (1886) 118 U. S. 356, 370, 30 L. Ed. 220.
2 U. S. v. Lee (1882) 106 U. S. 196, 220, 27 L. Ed. 171.




436


PHILIPPINE GOVERNMENT


it will fall as all such governments have fallen. If a Government of Laws, it is assured of one vital element of
success. Let him who loves his country revere its laws to
the end (to parody the phrase) that the Philippines may
thrive as a free, happy, and prosperous country.
~ 117. Division of powers.22-An analysis of government into three powers was first developed as a canon
of enlightened political science by Baron De Montesquieu
in his L'Esprit des Lois (the Spirit of the Laws) appearing in 1748. The idea, however, was possibly as old as
Aristotle, was found by Montesquieu in the so-called English Constitution, and later was reproduced and popularized in America by Blackstone-but to Montesquieu
belongs the merit of showing the necessity of separate
departments and of drawing to himself the leading minds
of the time.28 The great French publicist under the heading "Of the Constitution of England" writes:
"In every government there are three sorts of power;
the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.
The latter we shall call the judiciary power, and the
other simply the executive power of the state.
"The political liberty of the subject is a tranquillity of
mind arising from  the opinion each person has of his
safety. In order to have this liberty, it is requisite the
government be so constituted as one man need not be
afraid of another. When the legislative and executive
powers are united in the same person, or in the same body
of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate
82 See generally Op. Atty. Gen. P. I., Jan. 27, 1912; 6 R. C. L.
pp. 144 et seq; Willoughby on the Constitution, Vol. II, Ch. LXIII.
28 See well considered opinion of Durfee, J.. in Mauran v. Smith
(1865) 8 R. I. 192, 5 Am. Rep. 564; Madison, Federalist No. 47;
1 Cooley's Blackstone, p. 234.




BASIC PRINCIPLES


437


slould enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary
power be not separated from the legislative and executive. Were it joined to the executive power, the judge
might behave with violence and oppression. There would
be an end of everything, were the same man or the same
body, whether of the nobles or of the people, to exercise
those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of
individuals." 24
The triple division was coeval with the States of the
American Union. It became one of the original contributions of the national Constitution. Mr. Justice Miller
in the leading case of Kilbourn v. Thompson said:
"It is believed to be one of the chief merits of the
American system of written constitutional law, that all
the powers intrusted to government, whether State or
national, are divided into the three grand departments,
the executive, the legislative, and the judicial. That the
functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that
the lines which separate and divide these departments
shall be broadly and clearly defined. It is also essential
to the successful working of this system that the persons
intrusted with power in any one of these branches shall
not be permitted to encroach upon the powers confided
to the others, but that each shall by the law of its creation
be limited to the exercise of the powers appropriate to
its own department and no other.""
2 The Spirit of Laws, Book XI, Ch. 6. The editor adds this
note: "The greater part of the principles produced in this chapter
by Montesquieu is derived from Locke's 'Treatise upon Civil Government,' xii."
2 103 U. S. 168, 190, 26 L. Ed. 387 (1881). Daniel Webster,
speaking of this subject in another relation, said, "a separation of




438


PHILIPPINE GOVERNMENT


The theory of three co-ordinate and independent powers is not such as is implied in abstract statements. Familiar instances to be found in the American Government,
and even in the Constitution, of an official of one department lawfully performing a duty properly classified
under another department could be recited.26 Nor is it
departments, so far as practicable, and the preservation of clear lines
of division between them, is the fundamental idea in the creation
of all our constitutions, and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries." Webster's
Works, Vol. iv. p. 122. Johnson, J., in Barcelon v. Baker, 5 Phil.
(1905) 87, 115, said: "No government, past or present, has more
carefully and watchfully guarded and protected, by law, the individual rights of life and property of its citizens than the government of the United States and of the various states of the Union.
Each of the three departments of the government has had separate and distinct functions to perform in this great labor. The
history of the United States, covering more than a century and a
quarter, discloses the fact that each department has performed
its part well. No one department of the government can or ever
has claimed, within its discretionary power, a greater zeal than the
others in its desire to promote the welfare of the individual citizen. They are all joined together in their respective spheres,
harmoniously working to maintain good government, peace and
order, to the end that the rights of each citizen be equally protected. No one department can claim that it has a monopoly of
these benign purposes of the government. Each department has an
exclusive field within which it cal perform its part, within certain
discretionary limits. No other department can claim a right to
enter these discretionary limits and assume to act there. No presumption of an abuse of these discretionary powers by one department will be considered or entertained by another. Such conduct
on the part of one department, instead of tending to conserve the
government and the rights of the people, would directly tend to
destroy the confidence of the people in the government and to
undermine the very foundations of the government itself."
26E. g. The President signs bills and thus performs a legislative
act; the Senate confirms appointments and ratifies treaties and thus
becomes a partaker in the functions of the Executive; it tries impeachment cases and thus exercises a judicial power; a court makes
rules and incidentally makes a law; it appoints court officials and




BASIC PRINCIPLES


439


always easy to distinguish a legislative from a judicial
act, a legislative from an executive act, etc. The axiomatic
statement of Mr. Chief Justice Marshall relative to
the difference between the departments was "that the
legislature makes, the executive executes, and the judiciary construes, the law." 2 Expanded somewhat in application to the Philippines, the statement reads:   "The
legislature must enact laws subject to the limitations of
the organic laws...      The executive must execute
such laws as are constitutionally enacted. The judiciary,
as in all governments operating under written constitutions, must determine the validity of legislative enactments, as well as the legality of all private and official
acts." 28 But fine analytical lines cannot be drawn. "The
grant of the powers embraced in one of the great departments of government carries with it the right to use
means appropriate to the exercise of that power. Any
attempt to cripple the power through metaphysical classification of the means essential to its exercise must produce difficulties, if not absurdities." 29 Moreover, there
have been those who have contended that one power either
should be or is superior to the other two.    Mabini, for
example, in his Political Trinity illumines the general
principle in this beautiful figure of speech: "Society,
incidentally has performed an executive function. In the case of U. S.
v. Bull (1910) 15 Phil. 7, 27, Mr. Justice Elliott said: "In neither
Federal nor State governments is this separation such as is implied
in the abstract statement of the doctrine. For instance, in the
Federal government the Senate exercises executive powers, and the
President to some extent controls legislation through the veto power.
In a State the Governor is not a member of the legislative body, but
the veto power enables him to exercise much control over
legislation."
27 Wayman v. Southard (1825) 10 Wheat. 46, 6 L. Ed. 263.
28 U. S. v. Bull (1910) 15 Phil. 7, 28.
9 Appeal of Norwalk St. Ry. Co. (1897) 69 Conn. 576, 39 L.
R.A. 794. See also State v. Harmon (1877) 31 Ohio St. 250.




440


PHILIPPINE GOVERNMENT


then, should have a soul: authority. This authority should
have a brain to guide and direct it: the legislative power.
A will that works and makes it work: the executive. A
conscience to try and punish the bad: the judicial power.
These powers should be independent in the sense that one
should not encroach upon the attributes of the other."
"But," he adds, "the last two should be made subservient
to the first, just as will and conscience are subordinated
to reason." 80 Finally, it can not be denied that attempts
by one department to trespass on the domain of another
have been made.    To quote again from    Mr. Justice Miller as to the American experience: "While the experience
of almost a century has in general shown a wise and commendable forbearance in each of these branches from encroachments upon the others, it is not to be denied that
such attempts have been made, and it is believed not always without success. Powerful and growing temptations," he states are presented "to those to whom that
exercise is intrusted, to overstep the just boundaries of
their own department, and enter upon the domain of one
of the others, or to assume powers not intrusted to either
of them." 81
80 Holt, Introduction to the Study of Government, p. 38, says:
"Although in theory the three departments in the governmental
organization are of equal importance, in actual practice the legislative department is seen to have the greatest power. In all governments, that department exercises a measure of control over the
executive and judiciary, either by its office of allotting funds for
the expenses of other departments or by its regulations for their
performance of their functions."
81 Kilbourn v. Thompson (1881) 103 U. S. 168, 26 L. Ed. 387. Of
legislative power, Madison in No. 47 of the Federalist said: "Is
everywhere extending the sphere of its activity and drawing all
power into its impetuous vortex." Of judicial power, the late Mr.
Justice Harlan in his perspicuous dissenting opinion in the Standard Oil Case (1911) 221 U. S. 1, 105, 55 L. Ed. 663, said: "After
many years of public service at the national capital, and after
a somewhat close observation of the conduct of public affairs, I am






BASIC PRINCIPLES


441


The three independent departments of government
exist in the Philippine Islands.    In the words of Mr.
Justice Trent-"This Government being modeled after
the Federal and State governments in the United States
now possesses a complete governmental organization, with
executive, legislative, and judicial departments, which are,
exercising functions as independent of each other as the
Federal or State governments." 82 Every governmental
step under the American administration developed such
a division, until in section fifteen of the Administrative
Code it became expressly recognized. The specific duties
imposed, such as the large and uncontrolled power of the
Governor-General, the creation of an independent judiciary serving practically during good behavior, and the
freedom from arrest of members of the Legislature and
the right of the House and the Senate to be the sole judge
of the qualifications of its members and to discipline them,
impelled to say that there is abroad in our land a most harmful
tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construction." And
of executive power, one has only to recur to the newspapers and
periodicals to form an estimate of the extent of the criticism against
executive encroachment.
82Severino v. Governor-General (1910) 16 Phil. 366, 384. In
accord Judge George R Harvey, The Administration of Justice in
the Philippine Islands, 1 Philippine Law Journal, Feb., 1915, p.
330. But Commissioner Singson in an article entitled "The Filipino Legislator; His Difficulties and Successes," I Philippine Law
Journal, August, 1914, p. 12, dissents.  He says: "The present
government of the Islands, owing to its state of transition does
not rest, as in all other constitutional countries, on the basis of
a aivision of powers, legislative, executive and judicial, for although
the judicial power is absolutely separate from the legislative, it
is not separate from the executive power, (or at least was not
prior to the enactment of what is commonly termed the judicial
reorganization act), and the executive power is intimately connected with the legislative power, so that it can be said that the
system is entirely lacking in precedents from other civilized nations."




442


PHILIPPINE GOVERNMENT


most sharply define the boundaries between the departments. As said by Mr. Justice Elliott, "the separation of
powers is as complete as in most governments." 88 If anything, the Executive, because of his direct and close relations with the President of the United States and because
of his membership in the Legislature and his indirect control over some of its members has been above the Legislature in influence. However, legislation and administration should be on intimate terms if there is to be businesslike efficiency, somewhat as under the cabinet system of
government.4 Nevertheless, even with this concession,
the checks and balances of government must be as jealously guarded here as elsewhere. The executive, legislative, and judicial branches of government are fundamentally co-ordinate and co-important, but if one assumes the powers of the other, the usurper becomes the
superior and not an equal. Mr. Justice Moreland expounds this doctrine at length in the following language:
"The three departments are not only co-ordinate; they
are co-equal and co-important. While interdependent, in
the sense that each is unable to perform its functions
fully and adequately without the other, they are, nevertheless, in many senses independent of each other. That
is to say, one department may not control or even interfere with another in the exercise of its particular functions. This, of course, is fundamental. That the court
may declare a law passed by the legi'lature unconstitutional and void, or an act of the executive unauthorized
and illegal; or that the legislature may curtail within limits the jurisdiction and power of the courts, or restrict, in
a measure, the scope of executive action; or that the executive may, by his veto, render null and ineffective the
acts of the legislature and thus effectually thwart the pur

8 U. S. v. Bull (1910) 15 Phil. 7, 27.
84 Woodrow Wilson, The State, p. 569.






BASIC PRINCIPLES


443


poses of the majority, does not affect that independence.
These are merely the checks and balances made by the
people through the constitution inherent in the form of
government for its preservation as an effective institution.
In spite of these checks and balances, if not by reason of
them, the fundamental departments of the government
are independent of each other in the true sense of the
word.   The quality of government consists in their remaining so." 35
In applying general principles to actual facts, each department of the Government of the Philippine Islands
has done so largely speaking, within the rule early stated
by Mr. Justice Johnson, namely:      "Under the form    of
government established in the Philippine Islands, one departnlent of the Government has no power or authority
to inquire into the acts of another, which acts are performed zwithin the discretion of the other department."
(italics those of court.)86 While what is hereafter said
illustrates the scrupulous attitude of the judiciary toward
the legislature and the executive, the essentials would
apply as well, were authorities available, to the counter
relations of the executive to the judiciary and legislature
and of the legislature to the judiciary and the executive.
35 Province of Tarlac v. Gale (1913) 26 Phil. 338, 349. Johnson,
J., in Forbes v. Chuoco Tiaco (1910) 16 Phil. 534, 574, likewise
said: "Each department should be sovereign and supreme in the
performance of its duties within its own sphere, and should be left
without interference in the full and free exercise of all such powers,
rights, and duties which rightfully, under the genius of the government, belong to it. Each department should be left to interpret and
apply, without interference, the rules and regulations governing
it in the performance of what may be termed its political duties.
Then for one department to assume to interpret or to apply or to
attempt to indicate how such political duties shall be performed
would be an unwarranted, gross, and palpable violation of the
duties which were intended by the creation of the separate and
distinct departments of the government."
86 Barcelon v. Baker (1905) 5 Phil. 87, 96.




444


PHILIPPINE GOVERNMENT


The Supreme Court of the Philippine Islands was
hardly organized, when in an opinion written by the Chief
Justice it refused to interfere with the Executive in restrictions imposed on the admission of foreigners.37 The
administration of the immigration laws belonging to the
executive branch of the government, the judicial branch
(as held in a large number of cases) will not assume
jurisdiction, unless it is shown conclusively that there has
been an abuse of authority or a violation of the law.38
In the famous Chinese Expulsion case, Mr. Justice Johnson, speaking for our Supreme Court, held that "In the
exercise of his political duties the Governor-General is,
by the laws in force in the Philippine Islands, invested
with certain important governmental and political powers and duties belonging to the executive branch of the
government, the due performance of which is entrusted
to his official honesty, judgment, and discretion. So far
as these governmental or political or discretionary powers and duties which adhere and belong to the Chief Executive, as such, are concerned, it is universally agreed
that the courts possess no power to supervise or control
him in the manner or mode of their discharge or exercise." 39 On appeal to the United States Supreme Court.
judgment was affirmed in substance, and the further
doctrine laid down that "an Act of State is a matter not
cognizable in any municipal court." 0 The Supreme
Court of the Philippines has consistently applied the doctrine in another direction by holding that when the Governor-General, with the approval of the Philippine Commission, had declared a suspension of the writ of habeas
corpus, this decision was conclusive against the judicial
7 In re Patterson (1902) 1 Phil. 93.
88 Lo Po v. McCoy (1907) 8 Phil. 343 and other cases.
9 Forbes v. Chuoco Tiaco (1910) 16 Phil. 534, 578.
ao Chuoco Tiaco v. Forbes (1913) 228 U. S. 549, 57 L. Ed. 960.




BASIC PRINCIPLES


445


department.41   So also if a sentence in a criminal case
has become final and the defendant is in the custody of
the executive department, the judicial department cannot
alter the sentence even if inadvertently injustice has been
done.42   But the most far reaching decision came when
in an exhaustive opinion, the Supreme Court refused to
control or interfere with the official duties of the Governor-General.'s   As to administrative officers lower in
rank than the Chief Executive, the well-known principles
of Public Officers and Extraordinary Remedies apply.
Within these rules which the cases cited enunciate, the
judiciary can'control a duty not discretionary imposed
by law   on a public officer."   But generally the courts
will confine themselves to the enforcement of legal and
equitable rights, "leaving the administrative affairs of the
government to administrative officials." 45
For identical reasons, the courts will not only not assume legislative powers,B6 but will indulge every possible
presumptive in favor of the validity of a statute.47 When
the courts are forced to declare a law unconstitutional, it
is a duty performed not to make the judiciary supreme but
41 Barcelon v. Baker (1905) 5 Phil. 87.
42U. S. v. Court of First Instance (1913) 24 Phil. 321.
4 Severino v. Governor-General (1910) 16 Phil. 366. Same rule
for Porto Rico. Navarro v. Post (1909) 5 Porto Rico Fed. 61.
44 See Debrunner v. Jaramillo (1908) 12 Phil. 316; Asunci6n v.
Yriarte (1914) 28 Phil. 67; Lamb v. Phipps (1912) 22 Phil. 456, etc.
When duties are imposed on an executive officer in regard to which
he has no discretion, and in the execution of which individuals
have a direct pecuniary interest, and there is no other plain, speedy,
and adequate remedy, h'e may be required to perform those duties
by the compulsory process of mandamus. State v. Eberhart (1911)
116 Minn. 313, 39 L.R.A. (N.S.) 788; State v. Huston (1910)
27 Okla. 606, 34 L.R.A. (N.S.) 380. Similarly as to injunction.
5 Olsen v. Hernstein (1915) XIV 0. G. 166.
46West Coast Life Insurance Co. v. Hurd (1914) 27 Phil. 401.
47 See sec. 176 infra, especially notes 140, 145.




446


PHILIPPINE GOVERNMENT


to protect the people in their rights.48 "If an act of
the legislature is held illegal, it is not because the judges
have any control over the legislative power, but because
the act is forbidden by the fundamental laws of the land
and because the will of the people, as declared by such
fundamental laws, is paramount and must be obeyed,
even by the legislature." '9 The subject is explained by
the United States Supreme Court in a case of Philippine
origin as follows:
"We disclaim.the right to assert a judgment against
that of the legislature, of the expediency of the laws, or
the right to oppose the judicial power to the legislative
power to define crimes and fix their punishment, unless
that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal
duty, strictly defined and imperative in its direction, is
invoked. Then the legislative power is brought to the
judgment of a power superior to it for the instant. And
for the proper exercise of such power there must be a
comprehension of all that the legislature did or could
take into account,-that is, a consideration of the mischief and the remedy. However, there is a certain subordination of the judiciary to the legislature. The function of the legislature is primary, its exercise fortified by
presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of its
wisdom or propriety. They have no limitation, we repeat, but constitutional ones, and what those are the judiciary must judge." 50
Although the question has never arisen in this jurisdiction, there is also every reason to believe that the ju48 See Hamilton in the Federalist No. 78.
49 Johnson, J., in U. S. v. Ten Yu (1912) 24 Phil. 1, 11.
o Weems v. U. S. (1910) 217 U. S. 378, 379, 54 L. Ed. 803.




BASIC PRINCIPLES


447


diciary would not attempt to issue an injunction or mandamus to the Philippine Legislature.51
The judiciary must, of course, resist encroachment on
its constitutional powers by the other departments. "Its
preservation in its integrity and effectiveness is necessary
to the present form of government." 6      In a leading Virginia case, the court reached the following conclusions:
"That in the courts created by the Constitution there is
an inherent power of self-defense and self-preservation;
that this power may be regulated, but cannot be destroyed.
or so far diminished as to be rendered ineffectual by legislative enactment." 58   Mr. Justice Elliott in overruling a
motion to set aside a judgment of the Philippine Supreme
61 Injunction against legislature-see State v. Thorson (1896) 9
S. D. 149, 33 L.R.A. 582. Mandamus against legislature-see
De Diego v. House of Delegates, 5 Porto Rico 235 and Ex Parte
Echols (1866) 39 Ala. 698, 88 Am. Dec. 749. The court will not
entertain direct proceedings to admit, exclude, or reinstate any
member of the state legislature contrary to the decision of that
body after it has legally organized, In re Gunn (1893) 50 Kan. 155,
251-253, 19 L.R.A. 519 (cases); Hiss v. Bartlett (1855) 3 Gray
468, 63 Am. Dec. 768; French v. Senate (1905) 146 Cal. 604, 69 L.
R.A. 556; nor will they declare a vacancy in the membership
thereof, Covington v. Buffett (1900) 90 Md. 569, 47 L.R.A. 622.
Hall's Cases on Constitutional Law, p. 106, note.
52 Moreland, J., in Province of Tarlac v. Gale (1913) 26 Phil. 338,
348. "In this distinct and separate existence of the judicial power
in a peculiar body of men, nominated indeed, but not removable
at pleasure, by the crown, consists one main preservative of the
public liberty which cannot subsist long in any state unless the
administration of common justice be in some degree separated both
from the legislative and also from the executive power. Were it
joined with the legislative, the life, liberty, and property of the
subject would be in the hands of arbitrary judges, whose decisions
would be then regulated only by their own opinions, and not by any
fundamental principles of law, which, though legislators may depart
from, yet judges are bound to observe. Were it joined with the
executive, this union might soon be an overbalance for the legislative." 1 Cooley's Blackstone, p. 234.
68 Carter v. Commonwealth (1899) 96 Va. 791, 45 L. R A. 310.




448


PHILIPPINE GOVERNMENT


Court for failure to comply with section 45 of Act 136,
providing for a statement of the grounds of the judgment, said that: "A constitutional court (and in a broad
sense the courts of the Philippines are such) when exercising its proper judicial functions can no more be unreasonably controlled by the legislature than can the legislature when properly exercising legislative power be subjected to the control of the courts." 6   Consequently, the
jurisdiction granted the Courts of First Instance and
the Supreme Court by the Organic Law can be added to
but not diminished by the Legislature.55 But the enactment of a curative Act by the Legislature would not be
an invasion of judicial power.56 On the other hand,
a purely legislative or executive power not incidental to
the exercise of a proper judicial function can not be imposed on a court.67 Finally, the courts can not be deprived of the power to control their proceedings, metlods
of work, officers and attendance, surroundings, and other
incidents necessary to the unfettered discharge of their
s5Ocampo v. Cabafigis (1910) 15 Phil. 626, 631.
5 Weigall v. Shuster (1908) 11 Phil. 340; Barrameda -v. Moir
(1913) 25 Phil. 44; U. S. v. De Guzman (1915) XIII 0. G. 1173;
In re Guarifia (1913) 24 Phil. 37.
66Government of Philippine Islands v. Standard Oil Co. (1911)
20 Phil. 35; Chuoco Tiaco v. Forbes (1913) 228 U. S. 549, 57 L.
Ed. 960.
57 "It is also certain that the judicial power does not include
the exercise of such a legislative function, (as control of street
railways), and that the duty of making such regulations cannot be
imposed upon the superior court, because it involves the exercise
of legislative power by the court, and because a power in the legislature to impose such duties is inconsistent with the existence of
an independent and separate judicial department of government."
Appeal of Norwalk St. Ry Co. (1897) 69 Conn. 576. 39 L. R. A.
794. See also State v. Bates (1905) 96 Minn. 110, 114. As to performance of administration acts by the courts see Hayburn's Case
(1792) 2 Dall. 409, 1 L. Ed. 436; U. S. v. Ferreira (1851) 13 How.
40, 14 L. Ed. 42.




BASIC PRINCIPLES


449


judicial duties.5" Where a court of first instance issued
orders to the provincial authorities for the proper equipment of the court room which orders they failed to obey,
the Supreme Court on certiorari upheld the lower court.
In the course of the opinion by Mr. Justice Moreland it
was said:
"The judiciary has the power to maintain its existence;
and whatever is reasonably necessary to that end, courts
may do or order done. But the right to live, if that is all
there is of it, is a very small matter. The mere right to
breathe does not satisfy ambition or produce results.
Therefore, courts have not only the power to maintain
their life, but they have also the power to make that existence effective for the purpose for which the judiciary
was created. They can, by appropriate means, do all
things necessary to preserve and maintain every quality
needful to make the judiciary an effective institution of
Government. Courts have, therefore, inherent power to
preserve their integrity, maintain their dignity and to insure effectiveness in the administration of justice. This
is clear; for, if the judiciary may be deprived of any one
of its essential attributes, or if any one of them may be
seriously weakened by the act of any person or official,
then independence disappears and subordination begins.
The power to interfere is the power to control, and the
power to control is the power to abrogate. The sovereign
power has given life to the judiciary and nothing less than
the sovereign power can take it away or render it useless.
The power to withhold from the courts anything really
essential for the administration of justice is the power to
control and ultimately to destroy the efficiency of the judiciary. Courts cannot, under their duty to their creator,
the sovereign power, permit themselves to be subordinated


68 See Hall's Cases on Constitutional Law, p. 81, note.
P. I. Govt.-29.




450


PHILIPPINE GOVERNMENT


to any person or official to which their creator did not itself subordinate them.
"The courts cannot permit any official to take or
withhold from them anything which is vital to their functions, nor can an official, by the exercise of any judgment
or discretion of his own, escape an obligation which he is
under to the courts. The courts alone can, while the obligation continues, release him therefrom. If, therefore,
the officials of a province are under an obligation to the
Court of First Instance of that province to furnish shelter,
furniture, fixtures, supplies, equipment, etc., when, in the
serious and deliberate judgment of the court, they, or any
of them, are necessary for the administration of justice,
they cannot escape that obligation except by permission of
the court." 59
~ 118. Delegation of powers.-If the cardinal principle of republican government concerning separation of
powers is to have effect, a subsidiary proposition that no
department, except when authorized by the Constitution,
can abdicate authority or escape responsibility by delegating any of its powers to another body, is vital to the
maintenance of this system. The Executive rarely attempts such evasion of duties, but on the contrary is
much more liable to take over functions in the twilight
zone not assumed by anyone or to transgress on the field
of others. That judicial powers can not be delegated to
non-judicial officers is a rule strictly applied.  Judicial
offices must be exercised in person.60 The Philippine exoecutive officers who come closest to exercising judicial
functions are the Insular Collector of Customs, the Di9s Province of Tarlac v. Gale (1913) 26 Phil. 338, 349. Controversies of this sort can now be controlled under sec. 2029 Adm.
Code.
6~Reybold v. Dodd's Adm'r. (1834) 1 Har. (Del.) 401, 26 Am.
Dec. 401; State v. Noble (1889) 118 Ind. 350, 21 N. E. 244, 10 A.
S. R 143, 4 L. R. A. 101. E. g. under Torrens System of Land




BASIC PRINCIPLES


rector of Labor, and the Board of Public Utility Commissioners.  Referees and commissioners merely make
reports of facts to the court.61 Even as to such officials
our Supreme Court has held that "Except by express provision of law, courts cannot delegate their functions and
where tlere is a provision permitting such delegation it
must be made in the form and manner prescribed." 6
Most questions arise relative to delegation of legislative power. The classic statement of the rule is that
of Locke, namely, "The legislative neither must nor can
transfer the power of making laws to anybody else, or
place it anywhere but where the people have." 68 Judge
Cooley, in language approvingly quoted by the authorities, enunciates the principle as follows: "One of the
settled maxims in constitutional law is, that the power
conferred upon the legislature to make laws cannot be
delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until
the constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative
has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power
shall be devolved, nor can it substitute the judgment, wisdom and patriotism of any other body for those to which
alone the people have seen fit to confide this sovereign
Registration, State v. Guilbert (1897) 56 Ohio St. 575, 47 N. E. 551,
60 A. S. R. 756, 38 L. R. A. 519. But indeterminate sentences, the
parol system, etc., are usually upheld, State v. Wolfer (1912) 119
Minn. 368, 138 N. W. 315, Ann. Cas. 1914A 1248, 42 L. R A.
(N. S.) 978. See 6 R. C. L., pp. 172 et seq.
61 Code of Civil Procedure, secs. 135, 140, 184, 243, 497; Act 294,
etc.
62 Labiano v. McMahon (1914) 28 Phil. 168, 173.
63 Locke on Civil Government, sec. 142.




452


PHILIPPINE GOVERNMENT


trust." 64 The Supreme Court of the Philippines, after
giving this quotation, appends the following: "This doctrine is based on the ethical principle that such a delegated power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of his
own judgment acting immediately upon the matter of
legislation and not through the intervening mind of another." 66 The rule obviously applies to a territorial legislature, to the Philippine Legislature, and to a local body
with legislative functions.66
An exception to the general rule having importance
for the Philippines is the right of Congress to delegate
legislative authority to such agencies in the Islands as it
may select.67  Another exception is the legal right of the
central legislative body to delegate legislative powers to
local authorities. Immemorial practice permits such delegation as fundamental in democratic government.68 The
laws by which the Philippine Commission and Legislature
organized provinces, municipalities, and townships are
therefore valid, since not prohibited by the Organic Law
and since in accord with American custom.
6 Cooley's Constitutional Limitations, 7th Ed., p. 163.
65Tracey, J., in U. S. v. Barrias (1908) 11 Phil. 327, 330.
866Territorial Legislature, 88 Cyc., p. 207, citing cases; Philippine
Legislature, U. S. v. Barrias, id.; Local bodies, Elliott, Municipal
Corporations, 2d Ed., p. 89, Macy, Cases on Municipal Corporations,
pp. 228-240, Op. Atty. Gen. P. I. Jan. 10, 1912.
7 Dorr v. U. S. (1904) 195 U. S. 138, 49 L. Ed. 128, 11 Phil. 706;
U. S. v. Heinszen (1907) 206 U. S. 370, 51 L. Ed. 1098.
68 "It is a cardinal principle of our system of government, that
local affairs shall be managed by local authorities, and general affairs by the central authority; and hence, while the rule is also
fundamental that the power to make laws cannot be delegated, the
creation of municipalities exercising local self-government has never
been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as
the grant of the authority to prescribe local regulations, according
to immemorial practice, subject, of course, to the interposition of




BASIC PRINCIPLES


453


There are also several qualifications to the main rule,
a few of which can be mentioned: Legislative power, according to many authorities, must not be delegated to the
people at large.69 The constitutionality of the referendum
depen(ls on the attitude of the courts in applying this
principle.  But reference to the people peculiarly interested may be made.70 Local option legislation is generally
upheld.71 Discretion may be committed to the other departments.72    Familiar instances are rules anid regulathe superior in cases of necessity."-Fuller, C. J., in Stoutenburgh
v. Hennick (1889) 129 U. S. 141, 147, 32 L. Ed. 637. "It seems to
be generally conceded," the court says in State v. Noyes (1855)
30 N. H. 279, "that powers of local legislation may be granted
to cities, towns, and other municipal corporations and it would require strong reasons to satisfy us that it could have been the design
of the framers of our Constitution to take from the legislature the
power which has been exercised in Europe by governments of all
classes from the earliest history, and the exercise of which has
probably done more to promote civilization than all the other causes
combined; which has been constantly exercised in every part of our
country from its earliest settlement, and which has raised up among
us many of the most valuable institutions."
696 R. C. L. 164; Opinion of the Justices (1894) 160 Mass. 586,
People z. Kennedy (1913) 207 N. Y. 533.
70 Cooley's Constitutional Limitations, 7th Ed., pp. 166 et seq.;
6 R. C. L. 167.
71 Ackerson v. City of Des Moines (1908) 137 Iowa, 452.
72Marshall, C. J., in Waynan v. Southard (1825) 10 Wheat. 1,
6 L. Ed. 253. See Union Bridge Co. v. U. S. (1906) 204 U. S. 364,
51 L. Ed. 523 reviewing previous decisions of the United States
Supreme Court and holding that legislative and judicial powers are
not unconstitutionally delegated to the Secretary of War by the provision of the river and harbor act of March 3, 1899 (30 Stat. at
L. 1121, 1153, chap. 425, U. S. Comp. Stat. 1901, p. 3545), No. 18,
empowering that official, when satisfied, after a hearing of the
parties interested, that a bridge over a navigable water way of
the United States is an unreasonable obstruction to navigation,
to require such changes or alterations as will render navigation
reasonably safe, easy, and unobstructed.




454


PHILIPPINE GOVERNMENT


tions promulgated by executive officers.7 Violations
thereof can even be punished as a public offense, but "must
have clear legislative basis."74 Of course, executive rules
and regulations can not alter or amend the law.75 Boards
such as our Public Utility Commission can be constituted
to regulate occupations and professions, and even to fix
just and reasonable rates of public service companies.
Delegation of authority to Boards of Special Inquiry in
immigration cases is valid.76 A power to determine some
fact or state of thing on which the law may depend or
whether a case comes within the statute may be delegated.7 In an early Ohio case, since consistently followed, Judge Ranney said: "The true distinction is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be,
and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.
The first cannot be done; to the latter no valid objection
can be made." 78 The taking effect of a complete statute
may be made conditional on some subsequent event.79
Thus a law may be enacted with the proviso that it shall
only be effective on proclamation by the Executive, or it
may be suspended by similar means.80
The foregoing rules, which undoubtedly require ex73 See 6 R. C. L. 177.
7 U. S. v. Grimaud (1911) 220 U. S. 506, 55 L. Ed. 563; U. S. v.
George (1913) 228 U. S. 14, 57 L. Ed. 712. See Willoughby on the
Constitution, Vol. II, pp. 1327 et seq.
76 Morrill v. Jones (1883) 106 U. S. 466, 27 L. Ed. 267; Merritt v.
Welsh (1882) 104 U. S. 694, 26 L. Ed. 896.
76 Lorenzo v. McCoy (1910) 15 Phil. 559 and many other cases.
7 See 6 R. C. L. 175, 176.
78Cincinnati, W. & Z. R. Co. v. Clinton County Comrs. (1852) 1
Ohio St. 88.
79 Cooley's Constitutional Limitations, 7th Ed. p. 165; 6 R. C. L.
166.
80 See 6 R. C. L. 170-172.




BASIC PRINCIPLES


455


planation to be freely understood, apply as well to the
Philippines, with one limitation which should not be forgotten,-that "the powers, duties, and responsibilities
conferred upon the Governor-General are far more comprehensive than those conferred upon State Governors."
-And again, as said by the Supreme Court, that "the
powers and duties of the Governor-General of the Philippine Islands are not specifically stated in the Organic
Acts." s The principal case of the United States v. Barrias82 besides confirming the general principles here
quoted, only went so far as to sustain harbor rules prescribed by the Insular Collector of Customs. An exhaustive opinion of the Attorney-General of the Philippines dated June 29, 1909, held Act 1902 entitled "An
Act authorizing the Governor-General to direct that any
unexpended balances of appropriations be returned to the
general fund of the Insular Treasury and to transfer
from the general fund moneys which have been returned
thereto" an undue grant of legislative power. Another
opinion of the Attorney-General, while frankly admitting
of doubt, was constrained to advise that Act 1748 (Adm.
Code, sec. 82) concerning the Governor-General's authority relative to adjustments of provincial and municipal
boundaries and the change of capitals, was valid. These
two opinions merely exemplify the familiar practice of
the Legislature to grant a great deal of power to the Governor-General and other executive officials. Whether these
laws, and all the various rules and regulations " which
are issued almost daily by members of the Executive Department, are in conformity with constitutional principles
are moot questions.
81 Trent J. in Severino v. Governor-General (1910) 16 Phil. 366,
385.
211 Phil. 327 (1908).
88 See Adm. Code, secs. 79, 292 and sec. 164 infra.




456


PHILIPPINE GOVERNMENT


~ 119. Irrepealable laws prohibited.84-Analogous
to the principle which forbids the Legislature to delegate
its discretionary authority, is another principle estopping
the Legislature from passing irrepealable laws.   Should
this not be so, legislative power might step by step be diminished. Consequently, a legislative body, as the Philippine Legislature or a municipal council, cannot bind or
limit the discretion of its successors by removing something from  their reach.  A qualification is the constitutional prohibition regarding laws impairing the obligation of contracts.85
A leading authority explains the principle prohibiting
a legislature from  limiting the future discretion of successors in the following words:
"Unlike the decision of a court, a legislative act does
not bind a subsequent legislature.  Each body possesses
the same power, and has the riglit to exercise the same
discretion. Measures, though often rejected, may receive
legislative sanction. There is no mode by which a legislative act can be made irrepealable, except it assume the
form and substance of a contract. If in any line of legislation a permanent character could be given to acts, the
most injurious consequences would result to the country.
Its policy would become fixed and unclangeable on great
national interests, which might retard, if not destroy, the
public prosperity.  Every   legislative body, unless restricted by the constitution, may modify or abolisl the
acts of its predecessors; whether it would be wise to do
so is a matter for legislative discretion." 86
84 See Cooley's Constitutional Limitations, 7th Ed., pp. 174-176;
1 Cooley's Blackstone, 4th Ed., p. 82; Lewis' Sutherland on Statutory Construction, sec. 244, quoted in Duarte z. Dade (1915) XIII
O. G. 2006; Elliott, Municipal Corporations, 2d Ed., pp. 91 ct seq.
85 See sec. 149 infra.
86 Bloomer v. Stolley (1850) 5 McLean, 158, Fed. Cas. No. 1559.




BASIC PRINCIPLES


457


~ 120. Legislative privileges.

Philippinles.
"The Assembly shall be the
judge of the elections, returns,
and qualifications of its members.... It may determine the rules
of its proceedings, punish its
members for disorderly behavior,
and with the concurrence of twothirds expel a member." (Philippine Bill, sec. 7, last paragraph,
portion.)
"That the senate and house of
representatives, respectively, shall
be the sole judges of the elections, returns, and qualifications
of their elective members, and
each house may determine the
rules of its proceedings, punish
its members for disorderly behavior, and, with the concurrence
of two-thirds, expel a member.
"The senators and representatives shall, in all cases except
treason, felony, and breach of the
peace, be privileged from arrest
during their attendance at the
session of their respective houses
and in going to and returning
from the same; and for any
speech or debate in either house
they shall not be questioned in
any other place." (Philippine Autonomy Act, sec. 18, portion.)


United States.
"Each House shall be the judge
of the elections, returns, and
qualifications of its own members. 
"Each House may determine
the rules of its proceedings, punish its members for disorderly
behavior, and, with the concurrence of two-thirds, expel a member. 
"The Senators and Representatives... shall in all cases,
except treason, felony, and breach
of the peace, be privileged from
arrest during their attendance at
the session of their respective
Houses, and in going to and returning from the same; and for
any speech or debate in either
House they shall not be questioned in any other place."
(United States Constitution,Art.
I, secs. 5, 6, portions.)


The leading constitutional systems agree in providing
for freedom of arrest and for liberty of debate, under
certain conditions, for legislators. 87 Philippine law (Ad

87 See Burgess, Political Science and Constitutional Law, Vol. II,




458


PHILIPPINE GOVERNMENT


ministrative Code, sec. 111) contains similar provisions
in statutory form.   The Legislature further re-affirms
certain rights and privileges of the Houses in the exercise
of their functions. (Administrative Code, secs. 116, 117,
118.)
Freedom of legislators from arrest 88 is not absolute.
Indeed, since the excepting words, "Treason, felony, and
breach of the peace" have been construed to mean all
indictable crimes, the exemption from arrest is not very
important.89 Dangerous men can not find shelter behind
the privilege. But it is sufficient to permit members to
perform their legislative functions, to serve the public
without hindrance, and to estop baseless arrests for party
purposes.
Parliamentary freedom is universally recognized in the
United States and in England, Germany, France, and
elsewhere. Professor Burgess says "The fullest and most
complete ventilation of every plan, object and purpose is
necessary to wise and beneficial legislation. This could
never be secured if the members should be held under the
restraints imposed by the law of slander and libel upon
private character. There is no doubt that this privilege
may be grossly abused, since every word used in debate,
and frequently something more, is now reported to the
public; but the danger to the general welfare from its curtailment is far greater than that to individuals from its
exercise." 90 Mr. Chief Justice Parsons, in the old case
of Coffin v. Coffin, said by the United States Supreme
Court to be "perhaps the most authoritative case in this
pp. 121, 122; 6 R. C. L. pp 257, 258; and Kalaw, Teorias Constitucionales, pp. 93-95.
88 See Cushing on Law and Practice of Parliamentary Assemblies,
secs. 546-597.
89 Williamson v. U. S. (1908) 207 U. S. 425, 52 L. Ed. 278.
90 Burgess, Political Science and Constitutional Law, Vol. II, p.
122.




BASIC PRINCIPLES


459


country on the construction of the provision in regard to
freedom  of debate in legislative bodies," 91 quotes the
twenty-first article of the declaration of rights to the effect
that "the freedom of deliberation, speech and debate
in either house of the legislature is so essential to the
rights of the people, that it cannot be the foundation of
any accusation, or prosecution, action or complaint in
any other court or place whatsoever." He continues "these
privileges are thus secured, not with the intention of
protecting the members against prosecutions for their
own benefit, but to support the rights of the people, by
enabling their representatives to execute the functions of
their office, without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be
construed strictly, but liberally, that the full design of
it may be answered. I will not confine it to delivering
an opinion, uttering a speech or haranguing in debate; but
will extend it to the giving of a vote, to the making of a
written report, and to every other act resulting from the
nature, and in the execution of the office; and I would
define the article, as securing to every member exemption
from prosecution, for every thing said or done by him, as
a representative, in the exercise of the functions of that
office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and
against their rules. I do not confine the member to his
place in the house; and I am satisfied that there are cases,
in which he is entitled to this privilege, when not within
the walls of the representatives' chamber." 92
~ 121. Rule of the majority.-Another unwritten
law of popular government of relatively recent de91 Kilbourn v. Thompson (1881) 103 U. S. 168, 26 L. Ed. 377,
which see for an extended discussion of the subject.
924 Mass. 1, 3 Am. Dec. 189 (1808). See Cooley's Constitutional
Limitations, 7th Ed., pp. 634-636.




460


PHILIPPINE GOVERNMENT


velopment is faith in the rule of the majority. A minority
have rights protected by constitutional law   which the
majority must respect."  Nevertheless, submission of the
minority in times of stress and political excitement must
be learned, if peaceful democracy is to prosper. President Wilson says that "the force of modern governments
is not now often the force of minorities. It is getting to be
more and more the force of majorities. The sanction of
every rule not founded upon sheer military despotism is
the consent of a thinking people." 94
A rather distressing example in the Philippines is the
keen dislike of the defeated in electoral contests to submit gracefully to the mandate of the people and thereafter earnestly to co-operate with the victor.  Interminable election contests are costly and usually unavailing.
~ 122. Law of public officers.95-The maxim is, an
office is a public trust. "Public offices are created for the
purpose of effecting the ends for which government has
been instituted, which are the common good, and not the
profit, honor, or private interest of any one man, family,
or class of men." 96 A public officer is one participating
in the exercise of the powers or receiving the emoluments
of a public office.97 Consequently, an office is not in the
nature of a contract. An agreement by which some one
other than the person voted for and elected is to perform
the duties of the office, in the strong language of Mhr.
Chief Justice Wilmot "is void ab initio, by the common
93 See Loan Association v. Topeka (1875) 20 Wall. 656, 22 L.
Ed. 455; Cooley's Constitutional Law, 3d Ed., pp. 40, 41.
94 The State, p. 586.
95 See generally Mechem on Public Officers; Dillon's Municipal
Corporations, 5th Ed.; 29 Cyc., p. 1356, article by Frank J. Goodnow; Goodnow's Cases on the Law of Public Officers.
96 Brown v. Russell (1896) 166 Mass. 14.
97 Mechem on Public Officers, pp. 1 et seq.; 29 Cyc., pp. 1361 et seq.




BASIC PRINCIPLES


461


law, by the civil law, moral law, and all laws whatever."~
The distinction is between office and employment, or between officer and employee." Officers are of two classes
-de jure and de facto. The de facto doctrine is to the
effect that the acts of one who, although not the holder
of a legal office, was actually in possession of it under
some color of title or under such conditions as indicated
the acquiescence of the public in his action, can not be impeached in any suit to which such person is not a party.100
The doctrine "was introduced into the law as a matter
of policy and necessity, to protect the interest of the
public and individuals, where those interests were involved
in the official acts of persons exercising the duties of an
office without being lawful officers. It was seen, as was
said, that the public could not reasonably be compelled
to show a title, and these became settled principles in the
law. But to protect those who dealt with such officers
when apparent incumbents of offices under such apparent
circumstances of reputation or color as would lead men
to suppose they were legal officers, the law validated their
acts as to the public and third persons, on the ground that,
as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be
considered valid." 11 So a judge who, in good faith, continues to act and is recognized by common error after
the abolition of his court by statute is deemed judge de
facto of the new court which succeeds to the jurisdiction
98 Collins v. Blantern, 2 Wils. 341 (1 Smith's L. C. Pt. 2, 673).
See Robertson v. Robinson (1880) 65 Ala. 610.
" See Adm. Code, sec. 2.
10029 Cyc., p. 1389. The Philippine Legislature gives legislative
sanction to the doctrine by providing in sec. 503, Adm. Code, that
"when an ineligible person is elected and assumes office, his official
acts done prior to his removal from office shall be valid."
101 State v. Carroll (1871) 38 Conn. 449.




462


PHILIPPINE GOVERNMENT


of that presided over by him, and a judgment pronounced
by the judge de facto is valid and binding.102
Qualification for office can be fixed, and is here fixed,
by the Legislature. Contrariwise, disqualifications can be
named, as, conviction of a crime with deprivation of the
right to vote, because of the nature of the calling, and
because of an absolute prohibition, like that prohibiting
a member of the Legislature during the term for which
he was elected from being eligible to any office, the election to which is vested in the Legislature, or from being
appointed to any office under the authority of the Government of the Philippines, which shall have been created
or the emoluments whereof shall have been increased
during such time by the Government, except when the
office shall be temporary, or shall be held outside of the
Philippines, or shall be occupied without salary or emoluments.108 Many times the holding of two offices are incompatible. In the leading case on the subject, Mr. Justice Folger said: "The force of the word (incompatibility) in its application to this matter is, that from the
nature and relations to each other, of the two places, they
ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by
one person to faithfully and impartially discharge the duties of one toward the incumbent of the other." 104 And
Mechem on Public Officers, in the same connection, says:
"This incompatibility which shall operate to vacate the
first office exists when the nature and duties of the two
offices are such as to render it improper, from considera102 U. S. v. Abalos (1901) 1 Phil. 73.
103 See the Philippine Autonomy Act, sec. 18. last par.; The Election Law; Compiled Municipal Code, sec. 15; Adm. Code, sees. 119,
529; 4 Op. Atty. Gen. P. I. 640; 5 Op. Atty. Gen. P. I. 481; U. S.
Constitution, Art. 1, sec. 6, par 2.
104 People v. Green (1874) 58 N. Y. 295; 3 Op. Atty. Gen. P. I.
449.




BASIC PRINCIPLES


463


tions of public policy, for one person to retain both.
It must be an inconsistency in the functions of
the two offices, as judge and clerk of the same court,
claimant and auditor, and the like." 105 A surprisingly
large number of actual cases, which have resolved whether
offices are incompatible, will be found decided in the
notes on pages 15-17 of the Compiled Municipal Code.
An office is usually accepted by qualifying, taking an
oath, and for some appropriate positions, by filing a bond.
Acceptance should not be regarded by the patriotic citizen
as a burden, like in England where failure to accept was
penalized, but as a duty or out of an ambition either to
serve the public good or to attain higher honors.10" An
officer may often hold office until his successor is appointed or elected and qualified. A resignation to be accomplished must be made to, and accepted by, one having
authority to do so.107 In the absence of constitutional provision or statutory regulation, the power of removal is
incident to the power of appointment.1~  Ordinarily cause
should be assigned and hearing had. Philippine law provides such procedure for suspension or removal,-in the
Civil Service Law for Civil Service employees; in the
Election Law and the general statutes for municipal and
provincial officers; in the Judiciary Reorganization Act
for Judges of First Instance; and in other laws for other
officers and employees. As to compensation, if an office,
it is not based on contract and may not be assigned.
The municipal laws prohibit municipal officers from
105 Mechem on Public Officers, p. 268; 1 Op. Atty. Gen. P. I. 99.
See for local constructions, Malcolm's Compiled Municipal Code,
sec. 15, notes.
106 See Edwards v. U. S. (1880) 103 U. S. 471, 26 L. Ed. 314;
People v. Williams (1893) 145 Ill. 573.
107See U. S. v. Neri Abejuela (1908) 12 Phil. 30 and Reiter v.
State (1894) 51 Ohio St. 74.
108Ex parte Hennen (1839) 13 Pet. 230, 10 L. Ed. 138




464


PHILIPPINE GOVERNMENT


being directly or indirectly interested in any municipal
contract, contract work, or other municipal business or in
cockpits or other licensed games and amusements, or in
the purchase of any real estate or any other property belonging to the corporation.1~ This general rule, says Judge
Dillon, "is based upon principles of reason, of morality,
and of public policy." Its purpose, says Attorney-General
Villamor, "is to insure fidelity to official duties. It should
not, however, be so construed as to interfere with the
strictly private privileges of municipal officials." no  In
Wardell v. Railroad Company, the United States Supreme Court held: "It is among the rudiments of the law
that the same person can not act for himself and at the
same time, with respect to the same matter, as the agent
of another whose interests are conflicting. Thus a person
can not be a purchaser of property and at the same time
the agent of the vendor. The two positions impose different obligations, and their union would at once raise a
conflict between interest and duty; and 'constituted as
humanity is, in the majority of cases duty would be overborne in the struggle.'... The law, therefore,
will always condemn the transactions of a party in his
own behalf when, in respect to the matter concerned, he
is the agent of others, and will relieve against them
whenever their enforcement is seasonably resisted." n
Honorable Charles B. Elliott, former Secretary of Commerce and Police, in his revised text on Municipal Corporations, states the rule relative to the disqualifications of
a member of a local board on account of interest as follows: "A general principle similar to that which invali109 See Malcolm's Compiled Municipal Code, sec. 28 and notes.
0o Op. Atty. Gen. P. I., May 5, 1909, following Dillon's Municipal
Corporations.
11 103 U. S. 651, 658, 26 L. Ed. 509, 511 (1881). See also 2 Op.
Atty. Gen. P. I. 682.




BASIC PRINCI1PLES


465


dates a transaction by an agent or a trustee in which
he has an interest adverse to his principal or cestui qute
trust, applies to public officers in general, and therefore to
members of a board or council while exercising official
discretion on behalf of the public or of a public corporation; and invalidates any affirmatixve action by such a body
which rests upon the concurrence of a member who is
adversely interested in the matter concerned..
But many courts have adopted a much stricter doctrine
than this, namely, that no transaction or vote is valid if
any member is interested adversely to the corporation in
favor of accomplishing it. It is said that the influence
and interest of such a member must necessarily affect the
others, and further that the corporation or the public is
entitled to the disinterested counsel and judgment of
all." 112 And in the Cyclopedia of Law and Procedure, in
the article by Professor Goodnow followed by the Attorney-General, appears the following: "There is a general
rule of law that no member of a governing body shall
vote on any question involving his own character or conduct, his right as a member, or his pecuniary interest, if
that be immediate, particular, and distinct from the public interest." 18
Officers of the Executive Department are criminally liable to the general public under the appropriate provisions of the Penal Code, the Administrative Code, and
other laws.1' Act 1740, especially, is designed to punish
bonded public officers for the crime of misuse of Government funds or property intrusted to their care, whether
11 Elliott, Municipal Corporations, 2d Ed., p. 174; People v.
Township Board (1863) 11 Mich. 222.
113 28 Cyc., p. 337, quoted and applied in Op. Atty. Gen. P. I.
Oct. 18, 1910.
114 Penal Code, Book II, Title 7; Administrative Code, Book IV.
See also Compiled Municipal Code, sec. 28, and notes, and late case
of U. S. v. Udarbee (1914) 28 Phil. 382.
P. I. Govt.-30.




466


PHILIPPINE GOVERNMENT


such officers profit thereby themselves or whether third
persons reap the benefit through the abandonment, fault,
or neglect of the officer. m1 The orders of superiors and
of the courts must be obeyed. "The maintenance of public order and the existence of the commonwealth itself,
depend upon the enforcement of the mandates of the
courts and require prompt obedience to them, not only
by private citizens, but in a special manner by the Government officers who are particularly charged with a
knowledge of the law and with the duty of obeying it."11
Officers may also be civilly liable in contract or tort to
individuals or to the State. Some of the tests which determine the liability of the officer are whether the act
was within or in excess of authority, and whether the act
was discretionary or ministerial. 117 When the property
of one person is taken by a sheriff upon an execution
against another person, the sheriff is liable as any private
person would be for wrongfully taking the property of
another. 118 As to individual civil liability, in the language
of Mr. Justice Harlan of the United States Supreme
Court: "The same general considerations of public policy and convenience which demand for judges of courts
of superior jurisdiction immunity from  civil suits for
damages arising from acts done by them in the course
of the performance of their judicial functions, apply to
a large extent to official communications made by heads
of executive departments when engaged in the discharge
of duties imposed upon them by law. The interest of the
115 U. S. v. Garces (1915) XIII O. G. 1841 and many other cases.
16 Weigall v. Shuster (1908) 11 Phil. 340, 354.
117 See Lamb z. Phipps (1912) 22 Phil. 456; Mendoza z. De Leon
(1916) XIV O. G. 581; Adm. Code, secs. 5, 6.
118Osorio v. Cortez (1912) 24 Phil. 653, following Waite v.
Peterson (1907) 8 Phil, 449, Quesada z. Artacho (1907) 9 Phil. 104.
Uy Piaoco v. Osmefia (1907) 9 Phil. 299. See also People v.
Schuyler (1850) 4 N. Y. 173.




BASIC PRINCIPLES


467


people requires that due protection be accorded to them
in respect of their official acts. As in the case of a judicial officer, we recognize a distinction between action
taken by the head of a department in reference to matters
which are manifestly or palpably beyond his authority,
and action having more or less connection with the general matters committed by law to his control or supervision." 19 The Election Law contains stringent penal
provisions, which provide punishment for elected officials. 120 There is no remedy by civil suit against a legislative body. The civil liability of judges, according to
the Code of Civil Procedure, section 9, is restricted thus:
"No judge, justice of the peace or assessor shall be liable
to a civil action for the recovery of damages by reason
of any judicial action or judgment rendered by him in
good faith, and within the limits of his legal powers and
jurisdiction." In a late Philippine case, it was held that
under the law, as it now exists in the Islands, judges of
superior and general jurisdiction are not liable to respond
in civil actions for damages for what they may do in
the exercise of their judicial functions when acting under
their legal powers and jurisdiction.121
The Government of the Philippine Islands is only liable
for the negligent acts of its officers, agents and employees
when they are acting as special agents within the meaning of paragraph 5 of article 1903 of the Civil Code."'
~ 123. Interstate   comity.-The     bases of Private
International Law or Conflict of Laws, brought about
119 Spalding v. Vilas (1895) 161 U. S. 483, 40 L. Ed. 780.
120 See Villamor, Tratado de Elecciones, 2d Ed., Chs. XVI-XVIII.
121 Alzua v. Johnson (1912) 21 Phil. 308, following Bradley v.
Fisher (1872) 13 Wall. 335, 20 L. Ed. 646, and Cooley on Torts,
2d Ed., pp. 475-78,-affirmed on appeal to U. S. Supreme Court,
231 U. S, 106, 58 L. Ed. 142 (1913).
122 Merritt v. Government of the Philippine Islands (1916) XIV
0. G. 1077, following decisions of the Supreme Court of Spain.




468


PHILIPPINE GOVERNMENT


through interstate comity and concerning the situs of
practically every branch of the law, will be found discussed in texts on those subjects.122  These rules, except
as varied by Congressional or Philippine legislation, it is
to be presumed, will be enforced by the courts of the
Philippines. A local statutory example exactly in accord
with the principles of International Law is that marriages
contracted outside the Islands are valid.2
Starting from a constitutional rather than an international basis, that portion of Article IV of the United
States Constitution which declares that "full faith and
credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And
the Congress may by general laws prescribe the manner
in which such acts, records, and proceedings shall be
proved, and the effect thereof," is not in force in the Philippines.  Congress has legislated upon this subject by
providing that "The acts of the legislature of any State
or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having
the seal of such Territory, State, or country affixed
thereto.  The records and judicial proceedings of the.
courts of any State or Territory, or of any slich country,
shall be proved or admitted in any other court within the
United States, by the attestation of the clerk and the
seal of the court annexed, if there be a seal, together with
the certificate of the judge, chief justice, or presiding
magistrate, that the said attestation is in due form. And
the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in
every court within the United States as they have by law
or usage in the courts of the State from which they are
22a See Minor, Conflict of Laws; Wharton, Conflict of Laws;
Gestoso, Desecho Internacional Privado; De Joya, Principios de
Derecho Internacional Privado, etc.
123 General Orders No. 68, The Marriage Law, sec. IV.




BAxSIc PRINCIPLES


469


taken." 124 It would seem that, from the national aspect,
the Philippine Islands is a "country subject to the jurisdiction of the United States."    However that may be,
from  the Philippine standpoint, the Code of Civil Procedure contains in statutory form provisions somewhat
similar to the Constitution. Many matters, as official acts
of the Government of the United States and of the
States, are judicially recognized.125 Public writings of
the United States, the States, and foreign countries are
admissible in evidence.126  Foreign judicial records can
be produced upon competent proof."7      Judicial records
of a court in the United States or a foreign country are
given effect under certain conditions.128 The records and
proceedings of a probate court in another state or country
are noticed.29  The deposition of a witness out of the
Philippine Islands may be taken.180 Instruments may be
acknowledged and authenticated without the Islands.1sl
Again, the same article of the Constitution declaring
that "The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several
States," is not in force in the Philippines. Nevertheless,
many interpretative principles which have grown up
around the clause undoubtedly have weight here.182 As
a local example, other jurisdictions in the United States
are recognized in the privileges accorded those admitted
to certain professions, as law. The rights and duties of
124 Sec. 905, U. S. Revised Statutes, or sec. 1519, U. S. Compiled
Statutes (1913).
125 Code of Civil Procedure, sec. 275.
126 Id. secs. 299, 300, 301.
127 Id. secs. 304, 305.
128 Id. secs. 309-312.
l29 Id. sec. 719.
180 Id. secs. 356 et seq.
81s Act. 2103.
182 See Corfield v. Coryell (1823) 4 Wash. C. C. 371, Fed. Cas. No.
3,230.




470


PHILIPPINE GOVERNMENT


aliens who are in the Philippines are considered in the
next section. As to the rights and privileges of a foreign
company, association, or corporation, a most important
doctrine frequently declared by the United States Supreme Court is that "The recognition of its existence even
by other states, and the enforcement of its contracts made
therein, depend purely upon the comity of those states,-a
comity which is never extended where the existence of
the corporation or the exercise of its powers is prejudicial
to their interests or repugnant to their policy. Having
no absolute right of recognition in other states, but depending for such recognition and the enforcement of its
contracts upon their assent, it follows, as a matter of
course, that such assent may be granted upon such terms
and conditions as those States may think proper to impose.
They may exclude the foreign corporation entirely, they
may restrict its business to particular localities, or they
may exact such security for the performance of its contracts with their citizens as, in their judgment, will best
promote the public interest. The whole matter rests in
their discretion." 183 A foreign company, association, or
corporation should be taken to mean a company, association, or corporation formed, organized, or existing under
any laws other than those of the Philippine Islands.1'8
Many requirements of the Philippine laws are made
identical for the domestic and foreign corporation. In
addition, special restrictions are imposed on the foreign
corporation.185
188 Paul v. Virginia (1869) 8 Wall. 168, 181, 19 L. Ed. 357. See
also Horn Silver Mining Co. v. New York (1892) 143 U. S. 305, 36
L. Ed. 164.
184 See Act 1459, The Corporation Law, sec. 68; Act 2437, The
Insurance Act, sec. 170, etc.
186 See Act 1459, The Corporation Law, secs. 68-73, as amended;
Act 926, The Public Land Law, secs. 10, 12; Act 2437, The Insurance Act, secs. 176-179, etc.




BASIC PRINCIPLES


471


Finally, the portion of this article of the Constitution
declaring that "A person charged in any State with
treason, felony, or other crime, who shall flee from justice,
and be found in another State, shall, on demand of the
executive authority of the State from which he fled, be
delivered up, to be removed to the State having jurisdiction of the crime," is not in force in the Philippines.
However, extradition 186 from the Philippines to the
United States or a foreign country and from the United
States or a foreign country to the Philippines is provided
for in two Acts of Congress of February 9, 1903, and
February 6, 1905, making certain sections of the Revised
Statutes of the United States "so far as applicable" apply
to the Philippine Islands.  The exact procedure, too complicated to be here outlined, can be gleaned by those interested in a compilation of certain sections of the Revised and Compiled Statutes applicable in the Philippines,
found in a note.187 Suffice it to say that under the Act
136 "The term extradition is applied to the legal process by which
one sovereign state, in compliance with a formal demand, surrenders
to another state, for trial, the person of a criminal who has sought
refuge within its territory." Davis, Elements of International Law,
3d Ed., p. 173; I Moore on Extradition, sec. 1.
17 "No. 1675.  (Act Feb. 9, 1903, c. 529, No. 1.)  Offenders
against the United States, how arrested and removed to or from
the Philippine Islands.
"The provisions of section ten hundred and fourteen of the Revised Statutes, so far as applicable, shall apply throughout the United
States for the arrest and removal therefrom to the Philippine
Islands of any fugitive from justice charged with the commission
of any crime or offense against the United States within the Philippine Islands, and shall apply within the Philippine Islands for the
arrest and removal therefrom to the United States of any fugitive
from justice charged with the commission of any crime or offense
against the United States. Such fugitive may, by any judge or
magistrate of the Philippine Islands, and agreeably to the usual
mode of process against offenders therein, be arrested and imprisoned, or bailed, as the case may be, pending the issuance of a




472


PHILIPPINE GOVERNMENT


of Congress of February 9, 1903, there is provided a
process for the arrest and removal of offenders against
the United States to or from the Philippine Islands.
Judges of First Instance in the Philippines are authorized
warrant for his removal to the United States, which warrant it
shall be the duty of a judge of the Court of First Instance seasonably
to issue, and of the officer or agent of the United States designated
for the purpose to execute. Such officer or agent, when engaged in
executing such warrant without the Philippine Islands, shall have
all the powers of a marshal of the United States so far as such
powers are requisite for the prisoner's safe-keeping and the execution of the warrant. (32 Stat. 806.)
"No. 1674. (R. S. No. 1014.) Offenders against the United States,
how arrested and removed for trial.
"For any crime or offense against the United States, the offender
may, by any justice or judge of the United States, or by any commissioner of a circuit court (U. S. Commissioner) to take bail,
or by any chancellor, judge of a supreme or superior court, chief
or first judge of common pleas, mayor of a city, justice of the
peace, or other magistrate, of any State where he may be found, and
agreeably to the usual mode of process against offenders in such
State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court
of the United States as by law has cognizance of the offense. Copies
of the process shall be returned as speedily as may be into the
clerk's office of such court, together with the recognizances of the
witnesses for their appearance to testify in the case. And where
any offender or witness is committed in any district other than
that where the offense is to be tried, it shall be the duty of the
judge of the district where such offender or witness is imprisoned,
seasonably to issue, and of the marshall to execute, a warrant for
his removal to the district where the trial is to be had.
"No. 10128. (Act Feb. 9, 1903, c. 529, No. 2.) Fugitives from
justice of Philippine Islands.
"The provisions of sections fifty-two hundred and seventy-eight
and fifty-two hundred and seventy-nine of the Revised Statutes,
so far as applicable, shall apply to the Philippine Islands, which,
for the purposes of said sections, shall be deemed a Territory within
the meaning thereof. (32 Stat. 807.)
"No. 10126. (R S. No. 5278.) Fugitives from justice of a State
or Territory.




BASIC PRINCIPLES


473


to issue warrants for the arrest of these fugitives from
justice.  The Governor-General by producing proper affidavit is authorized to make demand on the executive of
any State or Territory of the United States for any per"Whenever the executive authority of any State or Territory
demands any person as a fugitive from justice, of the executive
authority of any State or Territory to which such person has fled,
and produces a copy of an indictment found or an affidavit made
before a magistrate of any State or Territory, charging the person
demanded with having committed treason, felony, or other crime,
certified as authentic by the Governor or chief magistrate of the
State or Territory from whence the person so charged has fled, it
shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested
and secured, and to cause notice of the arrest to be given to the
executive authority making such demand, or to the agent of such
authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no
such agent appears within six months from the time of the arrest,
the prisoner may be discharged. All costs or expenses incurred
in the apprehending, securing, and transmitting such fugitive to
the State or Territory making such demand, shall be paid by such
State or Territory.
"No. 10127. (R. S. No. 5279.) Penalty for resisting agent, etc.
"Any agent so appointed who receives the fugitive into his
custody, shall be empowered to transport him to the State or Territory from which he has fled. And every person who, by force, sets
at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or
imprisoned not more than one year.
"No. 10124.  (Act Feb. 6, 1905, c. 454, No. 1.)  Delivery of
fugitives from justice, as between foreign country and Philippine
Islands.
"The provisions of section fifty-two hundred and seventy, fiftytwo hundred and seventy-one, fifty-two hundred and seventy-two,
fifty-two hundred and seventy-three, fifty-two hundred and seventyfour, fifty-two hundred and seventy-five, fifty-two hundred and seventy-six, and fifty-two hundred and seventy-seven of the Revised
Statutes (as amended by the Act approved August third, eighteen
hundred and eighty-two), so far as applicable, shall apply to the
Philippine Islands for the arrest and removal therefrom  of any




474


PHILIPPINE GOVERNMENT


son who is a fugitive from justice, or contrariwise, to
cause a fugitive in the Philippines to be arrested and
delivered to the agent of any State or Territory of the
United States. The Act of Congress of February 6,
fugitives from justice charged with the commission within the
jurisdiction of any foreign government of any of the crimes provided for by the treaty between the United States and such foreign nation, and for the delivery by a foreign government of any
person accused of crime committed within the jurisdiction of the
Philippine Islands. Such fugitive from justice of a foreign country
may, upon warrant duly issued by any judge or magistrate of the
Philippine Islands, and agreeably to the usual mode of process
against offenders therein, be arrested and brought before such judge
or magistrate, who shall proceed in the matter in accordance with
the provisions of the Revised Statutes hereby made applicable to
the Philippine Islands: Provided, That for the purposes of this section the order or warrant for delivery of a person committed for
extradition prescribed by section fifty-two hundred and seventytwo of the Revised Statutes shall be issued by the Governor of the
Philippine Islands under his hand and seal of office, and not by the
Secretary of State. (33 Stat. 698.)
"No. 10125. (Act Feb. 6, 1905, c. 454, No. 2.) Allowing prisoners
to escape punishable.
"The provisions of sections fifty-four hundred and nine and fiftyfour hundred and ten of the Revised Statutes are hereby made applicable to proceedings in extradition from the Philippine Islands,
either to the United States under an Act entitled 'An Act to provide
for the removal of person accused of crime to and from the Philippine Islands for trial,' approved February ninth, nineteen hundred
and three, or to foreign countries under the provisions of this Act.
(33 Stat. 698.)
"No. 10110. (R. S. No. 5270, as amended, Act June 6, 1900, c.
793.) Fugitives from the justice of a foreign country, or a country
under the control of the United States.
"Whenever there is a treaty or convention for extradition between
the Government of the United States and any foreign government,
any justice of the Supreme Court, circuit judge, district judge, commissioner, authorized so to do by any of the courts of the United
States, or judge of a court of record of general jurisdiction of any
State, may, upon complaint made, under oath, charging any person
found within the limits of any State, district or Territory, with having




BASIC PRINCIPLES


475


1905, provides a process by which fugitives from justice
charged with the commission within the jurisdiction of
any foreign government of any of the crimes provided for
by treaty between the United States and such foreign nacommitted within the jurisdiction of any such foreign government
any of the crimes provided for by such treaty or convention, issue
his warrant for the apprehension of the person so charged, that
he may be brought before such justice, judge, or commissioner,
to the end that the evidence of criminality may be heard and
considered. If, on such hearing, he deems the evidence sufficient
to sustain the charge under the provisions of the proper treaty or
convention, he shall certify the same, together with a copy of all
the testimony taken before him, to the Secretary of State, that a
warrant may issue upon the requisition of the proper authorities
of such foreign government, for the surrender of such person,
according to the stipulations of the treaty or convention; and
he shall issue his warrant for the commitment of the person so
charged to the proper jail, there to remain until such surrender
shall be made: Provided, That whenever any foreign country or
territory, or any part thereof, is occupied by or under the control
of the United States, any person who shall violate, or who has
violated, the criminal laws in force therein, by the commission of
any of the following offenses, namely: Murder and assault with
intent to commit murder; counterfeiting or altering money, or
uttering or bringing into circulation counterfeit or altered money;
counterfeiting certificates or coupons of public indebtedness, bank
notes, or other instruments of public credit, and the utterance or
circulation of the same; forgery or altering, and uttering what is
forged or altered; embezzlement or criminal malversation of the
public funds, committed by public officers, employees, or depositaries; larceny and embezzlement of an amount not less than one
hundred dollars in value; robbery; burglary, defined to be the
breaking and entering by nighttime into the house of another person
with intent to commit a felony therein; and the act of breaking
and entering the house or building of another, whether in the day
or nighttime, with the intent to commit a felony therein; the act
of entering, or of breaking and entering the offices of the Government
and public authorities, or the offices of banks, banking houses, savings banks, trust companies, insurance or other companies, with
the intent to commit a felony therein; perjury or the subornation
of perjury; rape, arson, piracy by the law of nations; murder, as



476


PHILIPPINE GOVERNMENT


tion may be arrested and removed from the Philippine
Islands, or a foreign government may, in similar cases,
cause the delivery of a person accused of crime committed
within the jurisdiction of the Philippine Islands. The
sault with intent to kill, and manslaughter, committed on the
high seas, on board a ship owned by or in control of citizens
or residents of such foreign country or territory and not under
the flag of the United States, or of some other government;
malicious destruction of or attempt to destroy railways, trams,
vessels, bridges, dwellings, public edifices, or other buildings, when
the act endangers human life, and who shall depart or flee, or
who has departed or fled, from justice therein to the United
States, any Territory thereof or to the District of Columbia, shall,
when found therein, be liable to arrest and detention by the
authorities of the United States, and on the written request or
requisition of the military governor or other chief executive officer
in control of such foreign country or territory shall be returned
and surrendered as hereinafter provided to such authorities for
trial under the laws in force in the place where such offense is committed. All the provisions of sections fifty-two hundred and seventy
to fifty-two hundred and seventy-five of this title, so far as applicable, shall govern proceedings authorized by this proviso: Provided further, That such proceedings shall be had before a judge
of the courts of the United States only, who shall hold such person
on evidence establishing probable cause that he is guilty of the offense charged: And provided further, That no return or surrender
shall be made of any person charged with the commission of any
offense of a political nature. If so held such person shall be returned and surrendered to the authorities in control of such foreign
country or territory on the order of the Secretary of State of the
United States, and such authorities shall secure to such a person
a fair and impartial trial.
"No. 10111. (R. S. No. 5271.) Evidence on the hearing.
"In every case of complaint, and of a hearing upon the return
of the warrant of arrest, copies of the depositions upon which
an original warrant in any foreign country may have been granted,
certified under the hand of the person issuing such warrant, and
attested upon the oath of the party producing them to be true
copies of the original depositions, may be received in evidence of
the criminality of the person so apprehended, if they are authenticated in such manner as would entitle them to be received for




BASIC PRINCIPLES


477


order or warrant for the delivery of the person committed
for extradition is issued in such cases not by the Secretary of State as usual, but by the Governor-General of
the Philippine Islands under his hand and seal of office.
similar purposes by the tribunals of the foreign country from
which the accused party escaped. The certificate of the principal
diplomatic or consular officer of the United States resident in
such foreign country shall be proof that any paper or other document so offered is authenticated in the manner required by this
section.
"No. 10112. (Act Aug. 3, 1882, c. 378, No. 1.) Place and character of the hearing.
"All hearings in cases of extradition under treaty stipulation or
convention shall be held on land, publicly, and in a room or office
easily accessible to the public. (22 Stat. 215.)
'No. 10113. (Act Aug. 3, 1882, c. 378, No. 2.) Fees of commissioners.
"This section may be regarded as superseded by Act May 28,
1896, c. 252, No. 21, ante, No. 1451.
"No. 10114. (Act. Aug. 3, 1882, c. 378, No. 3.) Witnesses for
indigent defendants.
"No. 10115. (Act. Aug. 3, 1882, c. 378, No. 4.) Payment of fees
and costs.
"No. 10116. (Act Aug. 3, 1882, c. 378, No. 5.) Evidence on the
hearing.
"No. 10117. (Act June 28, 1902, c. 1301, No. 1.) Fees and costs
in extradition cases, how paid; duties of Attorney-General and
Secretary of State.
"No. 10118. (R. S. No. 5272.) Surrender of the fugitive.
"It shall be lawful for the Secretary of State, under his hand and
seal of office, to order the person so committed to be delivered
to such person as shall be authorized, in the name and on behalf
of such foreign government, to be tried for the crime of which
such person shall be so accused, and such person shall be delivered
up accordingly; and it shall be lawful for the person so authorized
to hold such person in custody, and to take him to the territory
of such foreign government, pursuant to such treaty. If the person
so accused shall escape out of any custody to which he shall be
committed, or to which he shall be delivered, it shall be lawful to
retake such person in the same manner as any person accused of




478


PHILIPPINE GOVERNMENT


The lack of extradition treaties between the United States
and certain countries or possessions of certain countries
and failures in connection with attempts at extradition
of fugitives fleeing from the Philippines to Hongkong
leave extradition matters in the Philippines in a rather
any crime against the laws in force in that part of the United
States to which he shall so escape, may be retaken on an escape.
"No. 10119. (R. S. No. 5273.) Time allowed for extradition.
"Whenever any person who is committed under this Title or
any treaty, to remain until delivered up in pursuance of a requisition, is not so delivered up and conveyed out of the United States
within two calendar months after such commitment, over and
above the time actually required to convey the prisoner from the
jail to which he was committed, by the readiest way, out of the
United States, it shall be lawful for any judge of the United
States, or of any State, upon application made to him by or on
behalf of the person so committed, and upon proof made to him
that reasonable notice of the intention to make such application
has been given to the Secretary of State, to order the person so
committed to be discharged out of custody, unless sufficient cause
is shown to such judge why such discharge ought not to be ordered.
"No. 10120. (R. S. No. 5274.) Continuance of provisions limited.
"The provisions of this Title relating to the surrender of persons
who have committed crimes in foreign countries shall continue in
force during the existence of any treaty of extradition with any
foreign government, and no longer.
"No. 10121. (R. S. No. 5275.) Protection of the accused.
"Whenever any person is delivered by any foreign government to
an agent of the United States, for the purpose of being brought
within the United States and tried for any crime of which he is
duly accused, the President shall have power to take all necessary
measures for the transportation and safe-keeping of such accused
person, and for his security against lawless violence, until the final
conclusion of his trial for the crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or
naval forces of the United States, or of the militia thereof, as may
be necessary for the safe-keeping and protection of the accused.
"No. 10122. (R. S. No. 5276.) Powers of agent receiving offenders delivered by a foreign government.
"Any person duly appointed as agent to receive, in behalf of the
United States, the delivery, by a foreign government, of any person




BASIC PRINCIPLES


479


unsatisfactory state. Possibly this result is partially due
to the fact that extradition is necessarily regarded as a
national act."88
Filipinos going to other states may expect to be somewhat in the same position as foreigners entering the
accused of crime committed within the jurisdiction of the United
States, and to convey him to the place of his trial, shall have all
the powers of a marshal of the United States, in the several districts
through which it may be necessary for him to pass with such prisoner,
so far as such power is requisite for the prisoner's safe-keeping.
"No. 10123. (R. S. No. 5277.) Penalty for opposing agent, etc.
"Every person who knowingly and willfully obstructs, resists, or
opposes such agent in the execution of his duties, or who rescues
or attempts to rescue such prisoner, whether in the custody of the
agent or of any officer or person to whom his custody has lawfully
been committed, shall be punishable by a fine of not more than one
thousand dollars, and by imprisonment for not more than one year.
"No. 10308. (Crim. Code, No. 138; R. S. No. 5409.) Allowing
prisoner to escape.
"No. 10309. (Crim. Code, No. 139; R. S. No. 5410.) Application of provisions."
Secs. are as appearing in the U. S. Compiled Statutes of 1913.
See generally IV Moore, International Law Digest, Ch. XIV, and
Willoughby on the Constitution, Vol. I, Ch. XIV.
188 See U. S. v. Rauscher (1886) 119 U. S. 407, 414, 30 L. Ed.
425 in which the Supreme Court said: "There can be little doubt
of the soundness of the opinion of Chief Justice Taney, that the
power exercised by the Governor of Vermont is a part of the
foreign intercourse of this country which has undoubtedly been
conferred upon the Federal Government; and that it is clearly included in the treaty-making power and corresponding power of
appointing and receiving ambassadors and other public ministers.
There is no necessity for the States to enter upon the relations with
foreign nations which are necessarily implied in the extradition of
fugitives from justice found within the limits of the State, as there
is none why they should in their own name make demand upon
foreign nations for the surrender of such fugitives. At this time
of day, and after the repeated examinations which have been
made by this court into the powers of the Federal Government
to deal with all such international questions exclusively, it can
hardly be admitted that, even in the absenct of treaties or acts




480


PHILIPPINE GOVERNMENT


Philippines.139  Passports are usually essential when travelling abroad except in the United States. They are issued by the Governor-General to citizens of the United
States and to citizens of the Philippine Islands who owe
allegiance to the United States.140
~ 124. Aliens.141-Every       sovereignty,    for   social,
economic, or political reasons, as protection to public
of Congress on the subject, the extradition of a fugitive from
justice can become the subject of negotiations between a State of
this Union and a foreign government."   The extradition treaty
between the United States and Mexico, however, permits requests
for extradition to be made by the governors, or other civil authorities, of the frontier states, or, in case the civil authority is suspended,
then through the military officer in chief command of such state or
territory. Davis, Elements of International Law, 3d Ed., pp. 174, 175.
139 But Frederick R. Coudert, Certainty and Justice, p. 252, claims
that unlike aliens, Filipinos would not have access to the courts
of the United States. There is, however, contrary judicial practice
and Filipinos have sued in State and Federal Courts.
140 See Rules re Passports in the United States, Sept. 12, 1903:
Executive Order No. 32, s. 1904, Vol. 3, Public Laws, p. 520, and
generally III Moore, International Law Digest, Ch. XII.  "Sec
tion 4076 of the Revised Statutes of the United States, based on
the act of August 18, 1856, provided that no passport should be
'granted or issued to or verified for any other persons than citizens
of the United States.' As we have seen, the inhabitants of Porto
Rico were, by the act of April 12, 1900, supra, declared to be 'citizens
of Porto Rico;' while the people of the Philippines were, by the
act of July 1, 1902, declared to be 'citizens of the Philippine Islands;'
and passports were issued to them accordingly. In order to cover,
generally, the case of the inhabitants of the insular possessions of
the United States, who, while they had not been declared to be
citizens, were declared to be entitled to the protection of the
United States Congress, by the act of June 14, 1902, amended section
4076 so as to read: 'No passport shall be granted or issued to or
verified for any other persons than those owing allegiance, whether
citizens or not, to the United States.' Act of June 14, 1902, 32
Stat., part 1, p. 386." III Moore, International Law Digest, pp
877, 878.
141 "The term alien is applied to any person within the territory
of a state, at any time, who is not a citizen or subject of that state,




BASIC PRINCIPLES


481


safety or public order and as a police measure, has the
inherent and absolute right essential to self-preservation
to refuse admission to aliens, or to admit them upon such
conditions as it may see fit to prescribe, or to expel or
cleport them. Not stopping to quote from a long array of
authorities (some to be found cited in a note) in support
of this maxim of the public law, we allude only to the
discussion of the rule and its reason by the Chief Justice
of the Supreme Court of the Philippines in the following
well-chosen language:
"Unquestionably every State has a fundamental right
to its existence and development, as also to the integrity
of its territory and the exclusive and peaceable possession
of its dominions which it may guard and defend by all
possible means against any attack...      We believe, it is a doctrine generally professed by virtue of the
fundamental right to which we have referred that under
no aspect of this case does the right of intercourse give
rise to any obligation on the part of the State to admit
foreigners under all circumstances into its territory.
The international community, as Martens says, leaves
States at liberty to fix the conditions under which foreigners should be allowed to enter their territory. These
conditions may be more or less convenient to foreigners,
but they are a legitimate manifestation of territorial
power and not contrary to law. In the same way a State
possesses the right to expel from its territory any foreigner who does not conform to the provisions of the local
law.  (Martens's Treatise on International Law, Vol. I,
either by birth or naturalization. These foreigners or strangers
are susceptible of classification into (a) Aliens, or Aliens Proper,
including all those persons who are sojourning temporarily within
the state, or who are passing through its territory. (b) Domiciled
Strangers, including all those persons who have acquired a legal
domicile at some place within its territorial jurisdiction." Davis,
Elements of International Law, 3d Ed., p. 151.
P. I. Govt.-31.




482


PHILIPPINE GOVERNMENT


p. 381.) Superior to the law which protects personal liberty and the agreements which exist between nations for
their own interest and for the benefit of their respective
subjects is the supreme and fundamental right of each
State to self-preservation and the integrity of its dominion and its sovereignty." i4
142 In Re Patterson (1902) 1 Phil. 93, 95. "It is an accepted
maxim of international law, that every sovereign nation has the
power, as inherent in sovereignty, and essential to self-preservation,
to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may
see fit to prescribe." Gray J. in Nishimura Ekiu v. U. S. (1892)
142 U. S. 651, 659, 35 L. Ed. 1146. "The right of a nation to expel
or deport foreigners, who have not been naturalized or taken any
steps towards becoming citizens of the country, rests upon the
same grounds, and is as absolute and unqualified as the right to
prohibit and prevent their entrance into the country."  Gray J.
in Fong Yue Ting v. U. S. (1893) 149 U. S. 698, 707, 37 L. Ed. 905.
"Every nation has the right to refuse to admit a foreigner into the
country when he can not enter without putting the nation in evident
danger or doing it manifest injury. What it (the nation) owes to
itself, the care of its own safety, gives to it this right; and in virtue
of its national liberty, it belongs to the nation to judge whether
its circumstances will or will not justify the admission of the
foreigner. Thus, also, it has a right to send them elsewhere if it has
just cause to fear that they will corrupt the manners of the citizen;
that they will create religious disturbances or occasion any other
disorder contrary to the public safety. In a word, it has a right,
and is even obliged in this respect, to follow the rules which
prudence dictates. (Vattel's Law of Nations, Book I, chap. 19, secs.
230, 231.) A state has the right to expel from its territory aliens,
individually or collectively, unless treaty provisions stand in the
way.... In      ancient times, collective expulsion  was much
practised. In modern times it has been resorted to only in case of
war. Some writers have essayed to enumerate the legitimate causes
of expulsion. The effort is useless. The reasons may be summed
up and condensed in a single word: The public interest of the state."
Bonfils, Manuel du Droit Int. Public, art. 442; Darut, De l'Expulsion
des Etrangers, Aix, 1902. See generally IV Moore, International
Law Digest, Ch. XIII; Forbes v. Chuoco Tiaco (1910) 16 Phil. 534,
quoting authorities.




BASIC PRINCIPLES


483


Immigration laws.
The United States as an independent nation can exclude
foreigners from its territory or regulate their admission.48 Orders by the Military Governor and regulations
by the Secretary of War first controlled immigration for
the Philippines."1 Congress later by Act of March 3,
1903, and now principally by Act of February 20, 1907,
provided for the regulation and restriction of immigration
to the Islands and extended the Chinese Exclusion Acts
thereto.15 The Philippine Legislature has the power,
with the approval of the President, to pass acts affecting
immigration.
The immigration laws of the United States in force
in the Philippine Islands and the Chinese Exclusion Acts
are administered by the Customs authorities.146 The procedure for the enforcement of both bodies of laws is the
same.147 The Insular Collector of Customs is the chief
immigration officer for the Islands. Boards of Special
143 See the Chinese Exclusion Case (1889) 130 U. S. 581, 32 L.
Ed. 1068 and Fong Yue Ting v. U. S. (1893) 149 U. S. 698, 37 L.
Ed. 905.
144 Described in IV Moore, International Law Digest, pp. 234
et seq; Bouve, Exclusion and Expulsion of Aliens from the United
States, pp. 111-113; and In Re Allen (1903) 2 Phil. 630.
146 See U. S. Compiled Statutes (1913), Title XXIX, for present
immigration laws. Named in Brady, Jurisdiction of the Customs
Board of Special Inquiry, III Philippine Law Review, Oct., 1914,
p. 628. Described in Bouve, id, Ch. II.
146Act of Congress of March 18, 1904, sec. 1; Act of Congress
of Feb. 6, 1905, sec. 6; Act 355, sees. 3, 7, 19, as amended; Act
702, sees. 1, 2; Note of Civil Governor Taft to Act of Congress of
March 3, 1902, 2 Public Laws, p. 585; In Re Allen (1903) 2 Phil.
630; Ngo-Ti v. Shuster (1907) 7 Phil. 355; Uy Kai Hu v. McCoy
(1913) 24 Phil. 151; Chieng Ah Sui v. McCoy (1915) 239 U. S. 139,
and many other cases.
147Uy Kai Hu v. McCoy (1913) id., citing Chinese Immigration
Circular No. 186 promulgated under Act 355, sec. 19, and the Act
of Congress of Feb. 6, 1905.




484


PHILIPPINE GOVERNMENT


Inquiry consisting of three officials appointed from time
to time by the Insular Collector are designated to pass
upon the question of the right of aliens to enter the
Philippine Islands in the first instance.148 The Board of
Special Inquiry is designed by law to be a deliberative
body.    These  boards   have   "authority  to  determine
whether an alien who has been duly held shall be allowed
to land or shall be deported."  While a technical judicial
hearing such as is granted in an ordinary action at law
is not required, nevertheless there must be the substance
of a hearing.149 Appeal can be taken by the alien or a
dissenting member to the Insular Collector of Customs.'50
Administrative remedies must be first exhausted before
resort to the courts can be had.'51 Since the administration of the immigration laws belongs peculiarly to the
executive branch of the Government, repeated decisions
of the Supreme Court of the United States and of the
Supreme Court of the Philippines have decided that the
judicial branch will not interfere, unless there has been
an abuse of authority or a violation of the law. In other
words, the decision of the appropriate administrative officer if adverse to the admission of an alien or to the
effect that he is not a citizen is final when no abuse of
authority by said officer is alleged and shown.'52 The Su148 See Act of Congress of Feb. 20, 1907, secs. 10, 24, 25.
149Edwards v. McCoy (1912) 22 Phil. 598. See also the late
cases of Amado Seng v. Insular Collector of Customs (1915) XIV
O. G. 52; Tin Lio v. Collector of Customs (1915) XIV O. G. 293;
Chiang Ah Sui v. McCoy (1915) 239 U. S. 139.
150Act of Congress of Feb. 20, 1907, sec. 25 in connection with
Act of Congress of Feb. 6, 1905, sec. 6; Lorenzo v. McCoy (1910)
15 Phil. 559.
15 Jao Igco v. Shuster (1908) 10 Phil. 448, citing decisions of the
U. S. Supreme Court.
152 Act of Congress of Feb. 20, 1907, sec. 25; U. S. v. Ju-Toy
(1905) 198 U. S. 253, 49 L. Ed. 1040; Pearson v. Williams (1906)
202 U. S. 281, 50 L. Ed. 1029; In Re Patterson (1902) 1 Phil. 93;




BASIC PRINCIPLES


485


preme Court has held that it will not interfere for the
purpose of modifying or reversing the conclusions of the
Collector of Customs in immigration cases when his conclusions are based on sonme evidence justifying them, and
when the parties have been given a fair, full, and 'free
hearing.'53 The burden is always upon the alien seeking
to land to show that he has such right.14
Chinese exclusion.
Treaties between the United States and China in conjunction with supplemental American legislation have resulted in a practically absolute exclusion of Chinese laborers from the United States.'55
As incident to the military administration of the Philippines but against the protest of the Chinese Minister at
Washington, the Commanding General by order of September 26, 1898, prohibited the coming of Chinese to the
Philippines, with the exception of those classes permitted
to enter the United States and laborers formerly residents
of Manila and temporarily absent therefrom. By anNgo-Ti v. Shuster (1907) 7 Phil. 355; Lo Po v. McCoy (1907)
8 Phil. 343; Young Wampo v. Insular Collector of Customs (1913)
24 Phil. 431; Que Quay v. Collector of Customs (1916) X1V O. G.
322, etc.; Bouve, id., Ch. IV.
168 Loo Sing v. Collector of Customs (1914) 27 Phil. 491. An abuse
of authority exists: (a) When a person has been denied admission
into the territory of the United States who does not belong to any
of the excluded classes, (b) When a person seeking admission has
not been given a full, fair, and free hearing, (c) When there is no
proof at all presented against the right of the applicant seeking
admission. Ang Eng Chong v. Collector of Customs (1912) 23
Phil. 614.
151Tan Chin Hin v. Collector of Customs (1914) 27 Phil. 521;
Gfiilo v. Collector of Customs (1915) XIV O. G. 58.
165 See generally IV Moore, International Law Digest, pp. 187
et seq; U. S. Compiled Statutes (1913), secs. 4290 et seq; Bouve,
Exclusion and Expulsion of Aliens from the United States, pp. 85
et seq and App. B.




486


PHILIPPINE GOVERNMENT


other order issued April 1, 1899, only such Chinese as
were in good health and had been residents of any of the
provinces of the Philippine Islands were permitted to
land at Manila, Iloilo, and Cebu, the only three open ports
of the Archipelago.166 Section 1 of the Act of Congress
of April 29, 1902, as amended by the Act of April 27,
1904, made applicable to the Philippine Islands the laws
relating to the exclusion of Chinese and their residence
in the United States, including sections 5, 6, 7, 8, 9, 10,
11, 13, and 14 of the Act of September 13, 1888, -continued in force."'7 It also prohibited the emigration of
Chinese laborers not citizens of the United States from
the Philippines to the mainland territory. The transit of
Chinese laborers from one island in the Philippines to another was permitted. The same law empowered the Secretary of Labor to make rules and regulations to execute
the provisions of the Chinese Exclusion Law and to appoint agents for the execution of the Act.168 Rule 38 of
156 IV Moore id. pp. 234 et seq; Foreign Relations 1899. "On
April 14, 1899, by Circular No. 13, Division of Customs and Insular
Affairs, the Secretary of War declared the laws and regulations
governing immigration to the United States to be in effect in the
territory under the government of the military forces of the United
States, and directed collectors of customs to enforce said laws
and regulations until the establishment of immigration stations in
said territory, and that said circular was published, for the information of all affected thereby, by the military governor of the
Philippine Islands on May 30, 1899, in Circular No. 6, series of
1899." U. S. v. Chan Sam (1910) 17 Phil. 448, 450.
157 Sec. 4337 U. S. Compiled Statutes (1913). The laws previously enforced which were re-enacted, extended, and continued by
this section are set forth in secs. 4290-4336 id.
158 Sec. 4338 U. S. Compiled Statutes (1913). This section as
originally enacted was amended by resolution of April 28, 1904, No.
34, by striking out the words "Secretary of the Treasury" used
therein and inserting in lieu thereof the words "Secretary of Commerce and Labor." The words "Commerce and" were superseded
by the creation of the Department of Labor with a Secretary of
Labor as the head thereof.




BAsIC' PRINCIPLES


487


the regulations of the United States, approved February
5, 1906, provided that Chinese persons of the exempt class
who are citizens or subjects of the Insular territory of the
United States and who wish to go from one Insular territory to another Insular territory in the United States,
or from such Insular territory to the mainland territory
of the United States, must obtain from an officer designated for the purpose by the Chief Executive of the Insular territories, respectively, a permission in a form
analogous to the certificate prescribed by section 6 of the
Act of Congress of July 5, 1884.169 The issuance of such
certificates in the Philippines is regulated by an Executive
Order of the Governor-General of September 23, 1904.
The law further provides for certificates of residence
in Insular territory and authorizes the Philippine Commission to make regulations for the enforcement of the
Act in the Philippine Islands.160  The Philippine Commission on March 27, 1903, passed Act 702, the Chinese
Registration Act.161
Our Supreme Court, through Mr. Justice Carson, after
citing or quoting from any of the laws here mentioned,
says that: "The manifest purpose and object of all this
legislation was to make it unlawful for any Chinese
laborer to enter the Philippine Islands or to remain there
in the event that he does in fact unlawfully gain an
entry; and to subject such persons to deportation, without unnecessarily molesting those Chinese persons, including laborers, who were lawfully in the Philippine
Islands at the time when the Chinese Immigration Laws
of the United States were extended to the Islands, and
159IV Moore id, pp. 236, 237.
60 Sec. 4339 U. S. Compiled Statutes (1913).
161Described in Bouve, pp. 117 et seq. Subsequent Acts of the
Philippine Commission extended the period for registration to April
29, 1904.




488


PHILIPPINE GOVERNMENT


whose right to be and remain there is not questioned." 12
The same Court, in addition to doctrines concerning immigration also applicable to Chinese exclusion, has established, among others, the following fundamental principles: Chinese persons and persons of Chinese descent
must be examined by the customs officers as to their right
to admission under the provisions of the general immigration Act as well as under the provisions of the laws relating to Chinese exclusion.163    The complaint for the
deportation of Chinese must be presented by officers of
the Philippine Government bearing the same relation to
said Government which the officers mentioned in the Act
of Congress of March 3, 1901, bear to the United States
Government.'64    Proceedings brought under the Chinese
Exclusion Act for the deportation of a Chinese person
are civil and not criminal.165  Under the provisions of Act
702, every Chinese person found in the Philippine Islands
without the certificate of residence required by the law
is presumed to be a Chinese laborer, in the absence of
satisfactory proof to the contrary, and upon him rests the
burden of proving his right to remain in the Islands.'66
162 U. S. v. Chan Sam (1910) 17 Phil. 448, 454.
68 Uy Kai Hu v. McCoy (1913) 24 Phil. 151.
164U. S. v. Lee Chiao (1912) 23 Phil. 543, 547.
165In Re Lam Jung Sing, 150 Fed. 608; U. S. v. Sy Quiat (1909)
12 Phil. 676, 678. The arrest and proceedings necessary to determine the right of Chinese persons to remain in this country
under the provisions of Act 702 are not trials for the commission of
criminal offenses. U. S. v. Yap Kin Co. (1912) 22 Phil. 340. Deportation proceedings are not criminal in their nature, so as to
give to the defendant the rights and privileges of one accused of the
commission of a crime. U. S. v. Go-Siaco (1909) 12 Phil. 490;
U. S. v. Hung Chang, 134 Fed. 19, and cases there cited; Nishimura
Ekiu v. U. S. (1892) 142 U. S. 651, 35 L. Ed. 1146; Fong Yue Ting
v. U. S. (1893) 149 U. S. 698, 37 L. Ed. 905; The Japanese Immigrant Case (1903) 189 U. S. 86, 47 L. Ed. 721; U. S. v. Tan Yak
(1913) 25 Phil. 116.
166 U. S. v. Sy Quiat (1909) 12 Phil. 676, citing authorities; U. S.
v. Lim Co. (1909) 12 Phil. 703.




BASIC PRINCIPLES


489


The status of a Chinaman and his right to enter these
Islands are to be determined as of the time when he presents himself for entry, and not by events which subsequently transpired.67
Expulsion.
The Government of the Philippine Islands, as said by
Mr. Justice Johnson of its Supreme Court in the sensational case of Forbes v. Chuoco Tiaco, "may prevent the
entrance into or eliminate from its borders all such aliens
whose presence is found to be detrimental or injurious
to its public interest, peace, and domestic tranquillity." 168
In the same case on appeal to the United States Supreme
Court, Mr. Justice Holmes expressed the opinion for the
Court that the Philippine Government had the right of
deportation "as an incident of the self-determination,
however limited, given to it by the United States." 169
This power belongs to the political department of the
Government-in the Philippine Islands, to the GovernorGeneral.'70   Act 2113    of the   Philippine  Legislature
(Adm. Code, sec. 83), regulating the authority of the
Chief Executive to expel foreigners, provides for a prior
investigation and hearing.'7 The penal laws also give
the courts the power to order deportation in certain
cases. 172
167 Juan Co. v. Rafferty (1909) 14 Phil. 235.
168 (1910) 16 Phil. 534 at pp. 559, 560,-italics those of court. See
also Arellano, C. J., In Re Patterson (1902) 1 Phil. 93.
169 Tiaco v. Forbes (1913) 228 U. S. 549, 557, 57 L. Ed. 960.
170 Forbes v. Chuoco Tiaco (1910) 16 Phil. 534 at pp. 568 et seq;
In Re Patterson (1902) 1 Phil. 93.
171 See Chan Yick Sam v. Prosecuting Attorney of the City of
Manila (1915) XIII O. G. 2209.
172 See "Extrafamiento," Penal Code; Act 899, vagrants; Act
2381, The Opium Law, sec. 5, etc. Act 2213 also authorizes the
Insular Collector of Customs to deport stowaways.




490


PHILIPPINE GOVERNMENT


Rights and privileges.
Generally speaking, all persons, unless because of exceptional circumstances as when necessary to limit the
privilege for reasons of public policy, are permitted to
enter a foreign country for purposes of travel, trade, or
sojourn. They then become subject to the provisions of
the local law of the State in which visiting or domiciled,
and are amenable for any infraction of the law.178 The
reasons for this last rule are stated by Mr. Chief Justice
Marshall as follows:
"When private individuals of one nation spread themselves through another as business or caprice may direct,
mingling indiscriminately with the inhabitants of that
other, or when merchant vessels enter for the purposes
of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual
infraction, and the government to degradation, if such
individuals or merchants did not owe temporary and local
allegiance, and were not amenable to the jurisdiction of
the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor
are they engaged in national pursuits.      Consequently,
173 See In Re Patterson (1902) 1 Phil. 93. Webster, when Secretary of State, in his report on Thrasher's Case in 1851, declared:
"Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the
taking of any oath of allegiance, or of renouncing any former allegiance, it is well known, that by the public law an alien, or a
stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that
government, and may be punished for treason or other crimes as
a native-born subject might be, unless his case is varied by some
treaty stipulation." Webster's Works, VI, 526, approved by the
U. S. Supreme Court in U. S. v. Carlisle (1873) 16 Wall. 147, 21
L. Ed. 426; U. S. v. Wong Kim Ark (1898) 169 U. S. 649, 42 L. Ed.
890.




BASIC PRINCIPLES


491


there are powerful motives for not exempting persons of
this description from the jurisdiction of the country in
which they are found, and no one motive for requiring it.
The implied license, therefore, under which they enter,
can never be construed to grant such exemption." 174
On the other hand, aliens in the United States have access to the courts, are entitled to the equal protection
of the laws, and can not be deprived of life, liberty, or
property without due process of law.75 A statute, arbitrarily forbidding foreigners to engage in ordinary kinds
of business to earn their living, would be unconstitutional
and void.176 But citizens may be preferred to non-citizens
without violating constitutional guaranties.
The Philippine Government has jurisdiction over all
persons within its boundaries, except the United States
Army and Navy and foreign consuls, and even over these
in many cases. By the use in the Philippine statutes of
such phrases as "resident of the Philippine Islands, not
a subject or citizen of any foreign government" or "citizen of the Philippine Islands or of the United States,"
Philippine and American citizens are placed on equal
terms. The Spanish Codes contain articles pertaining to
the rights of foreigners, although just how many of
these provisions are still in force it is difficult to say. At
least foreigners are only excluded from a few privileges
such as the right to hold office, to procure licenses in the
Philippine coast-wise trade, to take up homesteads, etc.
If a foreigner has capacity to engage in trade in his own
174The Exchange (1812) 7 Cranch 117, 144, 3 L. Ed. 287. See
also U. S. v. Wong Kim Ark id.
175 Yick Wo v. Hopkins (1886) 118 U. S. 356, 30 L. Ed. 220; LemMoon Sing v. U. S. (1895) 158 U. S. 538, 39 L. Ed. 1082. See generally Coudert, Certainty and Justice, Ch. IX "Aliens and the Progress of the Law."
176 Commonwealth v. Hana (1907) 195 Mass. 262, 11 L. R. A.
(N. S.) 799.




492


PHILIPPINE GOVERNMENT


country, he may engage in commerce in the Philippine
Islands.17 The Attorney-General of the United States
has said that:
"A foreign corporation may freely engage in industrial
pursuits in the Philippines, provided it obtain a license for
that purpose from the chief of the division of archives,
patents, copyrights, and trade-marks of the executive
bureau.
"In general, a (foreign) corporation would enjoy the
same rights and advantages in the Philippines as an
American corporation.
"The only provisions of the Philippine laws which
make any distinction between corporations organized under the laws of the United States and (foreign) corporations are: (1) Sections 21 and 35 of the organic act of
July 1, 1902, which confine the exploration of occupation of mineral lands to citizens of the United States or
of the Philippine Islands; and (2) section 979 of the
Compiled Laws of 1907, which makes the same restriction as to the purchase of nonmineral agricultural public
land in the Philippine Islands." 178
The Treaty of Paris prescribed specifically the privileges of Spaniards remaining in the Philippines. The
Supreme Court has, however, held that since the ratification of the treaty, the rights of Spanish subjects residents of the Philippines are merely identical with those
of other resident foreigners.179
~ 125. Citizenship.-We are concerned with "citizens of the United States" and "citizens of the Philippine
Islands."
177 5 Op. Atty. Gen. P. I. 639, citing authorities.
178 29 Op. Atty. Gen. U. S. 435. See also Interstate Comity, sec.
123 supra.
79 In Re Bosque (1902) 1 Phil. 88; (1908) 209 U. S. 91, 52 L.
Ed. 698.




BASIC PRINCIPLES


493


Citizens of the United States.
American    citizenship, according   to  the  Fourteenth
Amendment to the Constitution, can be acquired either
by birth in the United States or by naturalization therein.
Citizenship by birth may exist by reason of birth in a particular place-jus soli, or by reason of blood-jus sanguinis.   The doctrine of jus soli predominates in the
United States by virtue of the provisions of its Constittution and laws.180    Citizenship by naturalization can be
acquired by treaties or in pursuance of laws of Congress.
The Treaty of Paris transferring sovereignty over the
Philippines from Spain to the United States did not grant
collective naturalization to the inhabitants of the Islands.
Section 30 of the United States Naturalization Act of
June 29, 1906 (Section 4, 366 U. S. Compiled Statutes,
1913) provides a method by which persons wlio owe
permanent allegiance to the United States (Filipinos)
may be naturalized.     The applicable provisions of the
naturalization laws 81 authorize the admission to citizen180The doctrine of the jus soli "is that any person born within
the territory of a given state, and over which the state has established government, owes direct and immediate, or better, primary
and natural, allegiance to that state, no matter whether his parents
be citizens or subjects of, or aliens in, the said state."  Burgess,
Political Science and Constitutional Law, Vol. I, p. 223; Munroe
Smith, Nationality, in Cyclopaedia of Political Science (Ed. Lalor)
Vol. 2, p. 941 ff. "All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside." Fourteenth
Amendment to the Constitution of the United States. "All persons
born in the United States and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of the United
States." Rev. Stats., No. 1992; sec. 1, Civil Rights Act, April 9,
1866, 14 Stat. 27; III Moore, International Law Digest, pp. 277
et seq. See U. S. v. Wong Kim Ark (1898) 169 U. S. 649, 42 L.
Ed. 891; Roa v. Collector of Customs (1912) 23 Phil. 315, 322 et seq;
and Van Dyne, Citizenship of the United States, Part I.
181 See U. S. Compiled Statutes (1913) Title XIX and Van Dyne
on Naturalization for present U. S. Naturalization Laws.




494


PHILIPPINE GOVERNMENT


ship of such persons, who become residents of any State
or organized territory of the United States with the following modifications: "The applicant shall not be required to renounce allegiance to any foreign sovereignty;
he shall make his declaration of intention to become a
citizen of the United States at least two years prior to
his admission; and residence within the jurisdiction of
the United States, owing such permanent allegiance, shall
be regarded as residence within the United States within
the meaning of the five years' residence clause of the existing law." "The practical result of this section," said
Judge Paul Charlton, then Law Officer of the Bureau of
Insular Affairs, in an address before the American Academy of Political and Social Science, "is that an insular
inhabitant, possessing the other qualifications of an alien,
who has resided in any of the islands for a period of
three years or more, may come to the United States, and
by declaration that he desires to become a citizen of the
United States, and to permanently reside within the territory under its jurisdiction, may receive his first papers,
and two years thereafter, upon proper proof to a court
of requisite jurisdiction that he has complied with the
provisions of the naturalization law, he may become a
full citizen of the United States, and may thereafter
choose his residence with the same freedom as any other
citizen."182  The applicant must consequently, among
other requisites, not be physically incapacitated, be able
to speak the English language, declare his intention at
least two years prior to his admission, and become for a
time a resident of a State or an organized territory.88
Naturalization could not be conferred by any court at
18 Vol. 30, July, 1907, p. 109. Also recently judicially so decided
by the Supreme Court of the District of Columbia and by the U. S.
District Court for Hawaii.
l88Act of Congress June 29, 1906, sec. 8-sec. 4364 U. S. Compiled Statutes (1913); 38 Cyc. 197; XXVII Op. Atty. Gen. U. S. 12.




BASIC PRINCIPLES


495


present existing in the Philippine Islands; or, directly
stated, naturalization can only be conferred by a court
of or in the United States.18 The citizenship of the wife
will then follow that of the husband 185 and of the child
that of the parents.186
The foregoing principles, of course, include Filipinos
owing allegiance to the United States and permit of their
naturalization as citizens of the United States.187
Citizens of the Philippine Islands.
Philippine citizenship is covered by article IX of the
Treaty of Paris, section 4 of the act of Congress of July
1, 1902, as amended by Act of March 23, 1912, and as
superseded by Act of Congress of August 16, 1916.
The Treaty of Paris gave to Spanish subjects resident
in the Philippines the option of removing or remaining in
the Islands. If they left, they retained their Spanish nationality; if they remained, they adopted the nationality
of the Philippines, unless within one year from the date
of the exchange of ratifications (extended by Protocol
of Agreement between Spain and the United States for
an additional six months from April 11, 1900) they dedared before a court of record their intention to preserve
allegiance to Spain.188 The United States Supreme Court
184 Act of Congress June 29, 1906, sec. 3-sec. 4351 U. S. Compiled Statutes (1913); I Op. Atty. Gen. Porto Rico 179.
15 Rodriguez v. Vivoni (1902) 1 Porto Rico Fed. 493; Martinez
de Hernandez v. Casafias (1907) 2 Porto Rico Fed. 519.
186 Battistini v. Belaval (1903) 1 Porto Rico Fed. 213; Roa v.
Collector of Customs (1912) 23 Phil. 315; Boyd v. Thayer (1892)
143 U. S. 135, 36 L. Ed. 103; Van Dyne on Naturalization, Ch. II;
sec. 2172 U. S. Rev. Stat.-sec. 4367 U. S. Compiled Statutes (1913).
187 Previous citations, especially XXVII Op. Atty. Gen. U. S. 12.
188 The first paragraph of article IX of the Treaty of Paris reads:
"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes
her sovereignty, may remain in such territory or may remove there



496


PHILIPPINE GOVERNMENT


in the controlling case of Bosque v. United States decilded
that the absence of a Spanish subject from the Philippine
Islands during the entire period allowed by the treaty of
peace with Spain for making a declaration of his intention to preserve allegiance to the Crown of Spain prevents
the loss of his Spanish nationality by reason of his failure
to make such declaration.189 The Attorney-General of
the Philippines following the Bosque case was of the
opinion that, in order that a Spaniard might acquire
the status of a citizen of the Philippine Islands under the
treaty of peace with Spain, it was necessary that he have
a residence de facto in the Islands for the eighteen months
following the ratification of the treaty.190 The Supreme
Court of the Philippines held that a child under parental
from, retaining in either event all their rights of property, including
the right to sell or dispose of such property or of its proceeds; and
they shall also have the right to carry on their industry, commerce,
and professions, being subject in respect thereof to such laws as are
applicable to other foreigners. In case they remain in the territory
they may preserve their allegiance to the Crown of Spain by making,
before a court of record, within a year from the date of the exchange
of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall
be held to have renounced it and to have adopted the nationality
of the territory in which they may reside." The sole article of the
Protocol of Agreement between Spain and the United States of
March 29, 1900, reads: "The period fixed in Article IX of the
Treaty of Peace between the United States and Spain, signed at
Paris on the tenth day of December, 1898, during which Spanish
subjects, natives of the Peninsula, may declare before a court of
record their intention to retain their Spanish nationality, is extended
as to the Philippine Islands for six months beginning April 11,
1900." For description of Protocol, see III Moore, International
Law Digest, pp. 321, 322. G. O. No. 50 of the Military Governor of
the Philippines of Oct. 27, 1899, provided a means for carrying
out the provisions of article IX of the Treaty in the Philippines.
189209 U. S. 91 (1908) appearing in 11 Phil. 812; Op. Supreme
Court, P. I., same case f6und in 1 Phil. 88 (1902).
10 2 Op. Atty. Gen. P. I. 501.




BASIC PRINCIPLES


497


authority whose father did not take advantage of the
right of declaration of Spanish citizenship, as provided
by article IX of the Treaty of Paris, has ceased to be
a Spaniard and has become a citizen of the Philippine
Islands; 19 but the child would retain his Spanish nationality without the necessity of declaring such to be
his intention, if he had no parents or guardian in the
Philippines at the time the treaty was ratified.1" Article
IX of the Treaty of Paris does not refer to the citizenship
of corporations.19"
The Spanish Royal Decree of May 11, 1901, provided
a means whereby Spanish subjects who had lost their
Spanish citizenship, by reason of their failure to comply
with the provisions of the Treaty of Paris, as extended,
might regain their former status.l" This Royal Decree
was accepted by the War and State Departments of the
United States as not violating the provisions of the Treaty
of Paris, or infringing upon the rights of the United
States.19'
The last paragraph of article IX of the Treaty of Paris
reading "The civil rights and political status of the native
inhabitants of the territories hereby ceded to the United
States shall be determined by the Congress" left no such
choice to the Filipino inhabitants of the Philippines. In
the language of Mr. Chief Justice Arellano:
"The native subject could not evade the power of the
191 Resolution of the Supreme Court, In Re Arnaiz (1906) 9 Phil.
705. See also Resolution of the Supreme Court, In Re Villapol
(1908) 9 Phil. 706; and Vallecillo y Mandry v. Berhan Bus (1907)
III Porto Rico Fed. 175.
192 Rivera v. Pons (1908) IV Porto Rico Fed. 177.
198 Martinez v. La Asociaci6n de Sefioras Damas del Santo Asilo
de Ponce (1909) 213 U. S. 20, 53 L. Ed. 679.
194 Quoted in III Moore, International Law Digest, pp. 323-327.
See also 1 Op. Atty. Gen. P. I. 17.
195 Magoon's Reports, p. 173. Nor could it vary the terms of the
treaty. Calderon v. Fabian (1908) IV Porto Rico Fed. 152.
P. I. Govt.-32.




498


PHILIPPINE GOVERNMENT


new sovereign by withdrawing from the Islands, nor
while continuing to reside therein make declaration of
his intention to preserve the Spanish nationality enjoyed
under the former sovereign. Neither the Government
of the United States nor that of Spain can consider them
as other than Filipino subjects. This is expressly stated
by the Spanish Government in article 1 of its royal decree of May 11, 1901." 96
In conformity with the provisions of the Treaty of
Paris, Congress included in the Philippine Bill, section 4,
providing "That all inhabitants of the Philippine Islands
continuing to reside therein who were Spanish subjects
on the eleventh day of April, eighteen hundred and ninetynine, and then resided in said Islands, and their children
born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands and as such entitled to
the protection of the United States, except such as shall
have elected to preserve their allegiance to the Crown of
Spain in accordance with the provisions of the treaty of
peace between the United States and Spain signed at
Paris December tenth, eighteen hundred and ninetyeight." Act of Congress of March 23, 1912, re-enacted
this section with the addition of a proviso reading as follows: "Prozs'dcd, That the Philippine Legislature is
hereby authorized to provide by law for the acquisition
of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other Insular possessions of
the United States, and such other persons residing in the
Philippine Islands who could become citizens of the
United States under the laws of the United States, if residing therein." The Philippine Legislature has thus far
196 In Re Bosque (1902) 1 Phil. 88, 90. To same effect Roa v.
Collector of Customs (1912) 23 Phil. 315, at page 336 and 5 Op.
Atty. Gen. P. I. 144, 151.




BASIC PRINCIPLES


49'9


failed to pass the necessary supplletory legislation.  No
method at present exists by means of which one could
become a citizen of the Philippine Islands.197
The Supreme Court of the Philippines in the leading
case of Roa v. Collector of Customs 198 held that if the
admission of the petitioner as a citizen of the Philippine
Islands is not in conflict with any provision of the Constitution, any Act of Congress, any decision of the Supreme Court of the United States, or the general policy
of the United States as to citizenship, section 4 of the
Philippine Bill must be construed, if possible, in his favor.
Mr. Justice Trent, speaking for the court further said:
"Here (in section 4 of the Philippine Bill) Congress
declared that all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on
the Ilth of April, 1899, and then resided in this country,
and their children born subsequent thereto, shall be
deemed and held to be citizens of this country. According to those provisions it is not necessary for such persons to do anything whatsoever in order that they may
acquire full citizenship. The same is true with reference
to Spanish subjects who were born in Spain proper and
who had not elected to retain their allegiance to the Crown.
By section 4 the doctrine or principle of citizenship by
place of birth which prevails in the United States was
extended to the Philippine Islands, but with limitations.
In the United States every person, with certain specific exceptions, born in the United States is a citizen
of that country. Under section 4 every person born after
the 11th of April, 1b99, of parents who were Spanish
1971 Op. Atty. Gen. P. I. 551, 553; 3 Op. Atty. Gen. P. I. 299; 5
Op. Atty. Gen. P. 1. 622; In Re Bosque id. etc.
19823 Phil. 315 (1912) followed in Lim Teco v. Collector of
Customs (1913) 24 Phil. 84; U. S. v. Ong Tianse (1915) XIII O. G.
467 and other cases. See Lt smiiic elect Gely de Amadeo v. Reifkohl
(1910) V IOILO Kico led. 4:U.




500


1PHILIPPINE GOVERNMENT


subjects on that date and who continued to reside in this
country are at the moment of their birth ipso facto citizens of the Philippine Islands." (pp. 333, 334.)
A native of the Philippines, following precedents concerning Porto Ricans, would not lose the benefit of section
4 of the Philippine Bill because he was temporarily abiding elsewhere when the Treaty of Paris went into effect.19 A woman of foreign nationality who marries a
citizen of the Philippines follows his citizenship.20
Our Supreme Court has further laid down a number of interesting principles on facts concerning the
citizenship of persons born of Chinese fathers and Filipina mothers within the Philippine Islands. The general rule is that such persons are citizens of the Philippine Islands, with certain well-recognized exceptions
stated in United States v. Wong Kim Ark (169 U. S.
649 (1898) ). "If, during minority they are taken to
the country of their father's origin, they still remain
citizens of the Philippine Islands.   But in case the
country of their father's origin claims them as citizens
under the principle of jus sangulinis, such children are
then considered as possessing a so-called dual nationality....       A child born of alien parents who goes
to his father's native land at a tender age and remains
there during minority, on becoming of age should, if he
desires to retain his Filipino citizenship, indicate that
desire by exercising his right of election; and a failure
to express such a desire within a reasonable time should be
regarded as a strong presumption of his purpose to become definitely identified with the body politic of his
199 Acting Secretary of State Hill to Mr. Lenderink, April 29,
1901, Foreign Relations (1901) p. 32; Laborde v. Laborde (1907)
II Porto Rico Fed. 493; XXIV Op. Atty. Gen. U. S. 40; 5 Op. Atty.
Gen. P. I. 144; Roa v. Collector of Customs id.
200 Martinez de Hernandez v. Casafias (1907) II Porto Rico Fed.
519.




BASIC PRINCIPLES


501


father's country." "     In order to forfeit one's citizenship, an actual or express renunciation is not necessary;
mere absence for a prolonged period, without intention
to return, may be sufficient.2"0 The rule of the Department of State of the United States Government is
adopted, namely, "a continued residence abroad for three
years, after the attainment of majority, produces a loss
of citizenship, unless it is clearly proved that the animus
rezvertendi existed"-as intention to return to the Philippines did indeed exist in the case cited.208
A well-written opinion of Attorney-General Araneta
held that the Philippine Commission was without power
to enact a law forbidding the emigration of Filipinos. The
recognized policy of the Government of the United States,
201 Lim Teco v. Collector of Customs (1913) 24 Phil. 84, 85, 88.
See also on somewhat similar facts Lorenzo v. McCoy (1910) 15
Phil. 559; Muiioz v. Collector of Customs (1912) 23 Phil. 480; Que
Quay v. Collector of Customs (1916 XIV O. G. 322, and other
cases. Compare with opinion of Assistant Secretary of State Adee
to the U. S. Consul at Amoy, Sept. 5, 1903, in the Chuntianlay Case.
Van Dyne, Citizenship of the United States, pp. 225 et seq. The
child born in these Islands, had by a Chinaman with a Filipina
woman to whom he was not legally married, is presumed prima
facie to be a citizen of this country, inasmuch as under the law he
follows the status and nationality of his only legally recognized
parent, who is his mother, a Filipina. U. S. v. Ong Tianse (1915)
XIII O. G. 467.
202 Lorenzo v. McCoy (1910) 15 Phil. 559.
208 Mufuoz v. Collector of Customs (1912) 23 Phil. 480, citing Van
Dyne on Citizenship, pp. 276, 277 and In Re Bosque (1902) 1 Phil.
88 and holding that a male person, born in the Philippine Islands
of a Filipina mother and a Chinese father, the father being domiciled with his permanent home in the Philippine Islands and subject to the jurisdiction of the government thereof, is prima facie, a
citizen of the Philippine Islands; and the fact that he, at the age
of fourteen, went to China and remained there until 1897 when he
returned to the Islands where he has since continuously resided,
is not in itself sufficient to change his status as a citizen of the
Philippine Islands.




502


PHILIPPINE GOVERNMENT


continuing as a natural and inherent right under our system of government, is that the right of expatriation extends to natives of the Philippine Islands.204 Act 2486
of the Philippine Legislature attempts to restrict the emigration of Filipinos, principally to Hawaii, by placing
a tax on persons recruiting laborers for this purpose.
~ 126. Immunity of government from suit is inherent in all sovereign States. The reason given for the
right by the United States Supreme Court is this: "The
doctrine rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. It is obvious that the public service would
be hindered, and the public safety endangered, if the
supreme authority could be subjected to suit at the instance of every citizen and, consequently, controlled in
the use and disposition of the means required for the
proper administration of the Government." 205 Not long
since, the same Court further said that "A sovereign is
exempt from suit, not because of any formal conception
or obsolete theory, but on the logical and practical ground
2043 Op. Atty. Gen. P. I. 591. "The right of expatriation is a
natural and inherent right of all people." Act of Congress, July 27,
1868. See generally III Moore, International Law Digest, pp. 552
et seq and Van Dyne, Citizenship of the United States, Part IV,
Ch. I.
205 Field J. in The Siren (1869) 7 Wall. 152, 154, 19 L. Ed. 129.
Gray J. in Briggs v. The Life Boats (1865) 11 Allen, 157, 162, says:
"The broader reason is that it would be inconsistent with the very
idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to
repeated suits as a matter of right, at the will of any citizen; and
to submit to the judicial tribunals the control and disposition of
his public property, his instruments and means of carrying on his
government in war and in peace, and the money in his treasury."
And Davis J. in Nicholl v. U. S. (1869) 7 Wall. 122, 19 L. Ed.
123, says: "The principle is fundamental, applies to every sovereign
power, and but for the protection which it affords, the government
would be unable to perform the various duties for which it was




BASIC PRINCIPLES


503


that there can be no legal right as against the authority
that makes the law on which the right depends." 206 A
spirit of justice often causes States to consent to be sued
in the courts by the citizen, or to establish special agencies,
to redress injuries.
The United States can not be sued without its consent.
This is a proposition usually treated as an established
doctrine without discussion.807 A Court of Claims, in
which certain judicial proceedings can be brought against
the United States, has been created by Congress.208
Further waiver of exemption from suit can be accomplished only by legislative act.209
The early decision of the United States Supreme Court
in the case of Chisholm v. Georgias'1 caused the enactment
of the Eleventh Amendment to the Constitution, providing that "The judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States
by citizens of another State, or by citizens or subjects of
any foreign state."   The object was to prevent the indignity of subjecting a State of the Union, although not
sovereign, to the coercive process of judicial tribunals at
the instance of private individuals.'1      The  Eleventh
created. It would be impossible for it to collect revenue for its
support, without infinite embarrassments and delays, if it was subject to civil processes the same as a private person." These reasons
are criticized by Miller J. in U. S. v. Lee (1882) 106 U. S. 196, 27
L. Ed. 171.
206 Holmes J. in Kawananakoa v. Polyblank (1907) 205 U. S. 349,
51 L. Ed. 834.
207 U. S. v. Lee (1882) 106 U. S. 196, 27 L. Ed. 171, citing cases.
208 See Ch. 7, United States Judicial Code, and 22 Case and
Comment, Dec. 1915, p. 564.
209 Stanley v. Schwalby (1896) 162 U. S. 255, 40 L. Ed. 960.
210 2 Dall. 419, 1 L. Ed. 440 (1793). See also Hans v. La. (1890)
134 U. S. 1, 33 L. Ed. 842.
sl In re Ayers (1887) 123 U. S. 443, 31 L. Ed. 216.




504


PHILIPPINE GOVERNMENT


Amendment protects only the State, not their political
subdivisions or municipal corporations.212
Professor Burgess says that the United States Supreme
Court has "shown a most wise and commendable spirit
in the interpretation of this limitation upon individual
rights" by assuming jurisdiction "in behalf of the individual, wherever this could be accomplished without making the commonwealth the original and direct defendant
in the suit." 218 Thus, when the United States institutes
a judicial action, it stands practically in the same position as a private litigant; for example, the defendant can
present a set-off."' The interests of the State may be indirectly affected by a judicial proceeding without making
it a party.2s5 Reference to the nominal parties on the
record does not always determine the question of whether
a suit comes under the prohibition.216 Public officers can
31 Lincoln Co. v. Luning (1890) 133 U. S. 529, 33 L. Ed. 766.
218 Burgess, Political Science and Constitutional Law, Vol. I, p.
241.  He cites the following cases in substantiation: Cohen v.
Virginia (1821) 6 Wheat. 264, 5 L. Ed. 257; Clark v. Barnard
(1883) 108 U. S. 436, 27 L. Ed. 780; U. S. v. Lee (1882) 106 U.
S. 196, 27 L. Ed. 171; U. S. v. Schurz (1880) 102 U. S. 378, 26
L. Ed. 167; Davis v. Gray (1873) 16 Wall. 203, 21 L. Ed. 447;
Board of Liquidation v. McComb (1876) 92 U. S. 531, 23 L. Ed. 623;
Poindexter v. Greenhow (1885) 114 U. S. 270, 29 L. Ed. 185.
21 The Siren (1869) 7 Wall. 152, 19 L. Ed. 129.
215 "Cases of this sort may arise in courts of equity, where property is brought under its jurisdiction for foreclosure, or some other
proceeding; and the state, not having the title in fee, or the possession of the property, has some lien upon it, or claim against
it, as a judgment against the mortgagor, subsequent to the mortgage. In such a case the foreclosure and sale of the property will
not be prevented by the interest which the state has in it, but its right
of redemption will remain the same as before." Christian v. Atlantic
& N. C. R. Co. (1890) 133 U. S. 233, 247, 241-246, 33 L. Ed. 589.
See, also, Cunningham v. Macon, etc., Ry. (1883) 109 U. S. 446, 451,
452, 27 L. Ed. 992.
216 Poindexter v. Greenhow (1885) 114 U. S. 270, 287, 29 L. Ed.
182.






BASIC PRINCIPLES


505


be sued in their personal character.2'7  And there are
other exceptions which limit the general rule.
While the United States can not be sued without its
consent because sovereign, and while a State is equally
protected by the Eleventh Amendment, no such barriers
safeguard the territories. Notwithstanding, the incorporated territory of Hawaii was held by the United States
Supreme Court as within the prohibition. Mr. Justice
Holmes, following the quotation given in the beginning
of this section, continued:
"As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the
full sense of juridical theory, but naturally is extended to
those that, in actual administration, originate and change
at their will the law of contract and property, from which
persons within the jurisdiction derive their rights. A suit
presupposes that the defendants are subject to the law invoked. Of course it cannot be maintained, unless they are
so. But that is not the case with a territory of the United
States, because the territory itself is the fountain from
which rights ordinarily flow. It is true that Congress
might intervene, just as, in the case of a State, the Constitution does, and the power that can alter the Constitution might. But the rights that exist are not created by
Congress or the Constitution, except to the extent of certain limitations of power." 218
Likewise Porto Rico, although the question was complicated by a provision in the organic act authorizing the
body politic "to sue and be sued as such," was held as not
taken out of the general rule relative to immunity from
suit. The Chief Justice of the United States Supreme
Court, besides meeting this objection, said: "It is not
217 See Willoughby on the Constitution, Vol. 2, pp. 1074 et seq.
18 Kawananakoa v. Polyblank (1907) 205 U. S. 349, 353, 51 L. Ed.
834.




506


PHILIPPINE GOVERNMENT


open to controversy that, aside from the existence of some
exception, the government which the organic act established in Porto Rico is of such nature as to come within
the general rule exempting a government sovereign in
its attributes from  being sued without its consent.  In
the first place, this is true because, in a general sense,
so far as concerns the frame-work of the Porto Rican
government and the legislative, judicial, and executive
authority with which it is endowed, there is, if not a complete identity, at least, in all essential matters, a strong
likeness to the powers, usually given to organized territories, and, moreover, a striking similarity to the organic
act of the Hawaiian Islands (act of April 30, 1900, chap.
339, secs. 6, 55, 31 Stat. at L. 141, 142 and 150). But,
as the incorporated territories have always been held to
possess an immunity from suit, and as it has been, moreover, settled that the government created for Hawaii is
of such a character as to give it immunity from suit
without its consent, it follows that this is also the case as
to Porto Rico." 219 The doctrine is re-enforced for Porto
Rico by comparison of its status, not only with an organized, incorporated territory, but also with a State,
through a statement of the Supreme Court of Porto Rico
to the effect that Porto Rico enjoys substantially all the
sovereign powers possessed by any State of the Union.220
However, a suit to compel a Porto Rican official to carry
out his duties under a statute is not a suit against the
sovereign.22
When we take up the point in relation to the Govern819 People of Porto Rico v. Rosaly (1913) 227 U. S. 270, 57 L.
Ed. 507. See also Fajardo Sugar Estates Company v. Richardson
(1913) 6 Porto Rico Fed. 224, likewise holding that Porto Rico
cannot be sued without its consent.
220in re Neagle (1914) 21 Porto Rico 339.
221 Fajardo Sugar Estates Company v. Richardson (1913) 6 Porto
Rico Fed. 224.




BASIC PRINCIPLES


507


ment of the Philippine Islands, we find no decisive case.
As a matter of fact no instance is known where an attempt
has been made to sue the Insular Government directly
without its consent. In the one case in which the question was raised, the Supreme Court met the issue by
merely affirming the subsidiary principle of Tindal v.
Wesley, namely: "But the eleventh amendment gives no
immunity to officers or agents of a State in withholding
the property of a citizen without authority of law. And
when such officers or agents assert that they are in rightful possession, they must make good that assertion when
it is made to appear in a suit against them as individuals
that the legal title and right of possession is in the plaintiff." 22 In another case in which the Philippine Government expressly consented to be sued, the Supreme
Court merely observed that "All admit that the Insular
Government (the defendant) cannot be sued by an individual without its consent." 222  WTe believe that this
dictum is correct, for the government established by the
United States in the Philippines is of such a nature as
to bring it within the general rule exempting a State from
suit without its consent. The framework of government
is, in its essentials, quite similar to Hawaii, Porto Rico,
and a State of the American Union. It has, at least, as
many sovereign attributes as those territories or a state.
Reasons of public policy operate as strongly here as elsewhere. Laws are made here and logic teaches that a
legal right can not subsist against the authority which
creates it. It can not be presumed that Congress intended
to permit destruction of a government which it went to
such pains to set up. True it is that barriers are thus
raised against legitimate claimants. No Court of Claims
222Tindal v. Wesley (1897) 167 U. S. 204, 42 L. Ed. 137, affirmed in Tan Te v. Bell (1914) 27 Phil. 354.
222a Merritt v. Gov't of the Philippine Islands (1916) XIV O. G.
1077, 1078.




508


PHILIPPINE GOVERNMENT


or similar institution exists. The Insular Auditor is
granted authority over accounts in such terms as to make
it practically impossible for any action against him to lie
in the courts.3  Public funds in the hands of officers of
the Government can also not be reached indirectly by attachment or garnishment.24 The individual having a
claim against the Philippine Government, which has not
been passed in audit by the Insular Auditor, must, unless
abuse of discretion is shown when mandamus might lie,
first obtain from the Legislature a special act authorizing
suit. A number of such laws, in which the Government
through the Philippine Commission or Legislature has
consented to be sued in the courts, have been passed-thus
impliedly indicating the interpretation of the question by
all three departments and acquiescence therein by the public. Such acts abrogating immunity will be strictly construed and will give rise to no liability not previously
existing.22
We conclude that the Government of the Philippine Islands can not be sued without its consent, which must be
manifested by special Act of the Legislature, and that all
the rules herein stated for the United States apply as well
to similar facts in the Philippines. Local subdivisions, as
provinces, municipalities, and townships, can, of course,
sue and be sued, as indeed is expressly provided by law.
~ 127. Taxation, eminent domain, and police power
explained.-These great forces of government are
alike in that they exist independently of fundamental law
as a necessary attribute of sovereignty. They "underlie
228 See Act 1792, The Accounting Act (Adm. Code, Ch. 23),
Philippine Autonomy Act, secs. 24, 25, and Lamb v. Phipps (1912)
22 Phil. 456.
223 Op. Atty. Gen. P. I. 51, 371, citing cases; 4 Op. Atty. Gen.
P. I. 82; Buchanan v. Alexander (1846) 4 How. 20, 11 L. Ed. 857.
22a Merrit v. Gov't of the Philippine Islands (1916) XIV O. G.
1077; 36 Cyc. 915.




BASIC PRINCIPLES


509


the Constitution and rest upon necessity, because there
can be no effective government without them.
They are as enduring and indestructible as the state itself." m  They are also alike in that they constitute the
three methods by which the State interferes with private
property rights.226 And they are alike in that each presupposes an equivalent compensation-by taxation, in the
form  of protection and benefits from  the governmentby eminent domain, through the market value of the property taken-and by the police power, although to a less
direct and appreciable degree, through the maintenance of
a healthy economic standard      of society.2"7  Eminent
domain differs from taxation in that in the former case
the citizen surrenders something beyond his due proportion for the public good.2" The police power differs from
the other two forces, because the compensation is not
immediate or possibly apparent and may even cause annoyance and financial loss, but is mostly a just restraint
for the public good.22 Of course other distinctions exist,
but they are difficult to point out until the actual facts
arise for resolution.
~ 128. Taxation."
Philippines.                United States.
In making changes in taxation  "The Congress shall have powthe Commission "are to bear in  er,-To lay and collect taxes,
mind that taxes which tend to  duties, imposts, and excises to
penalize or repress industry and  pay the debts and provide for the
225 People v. Adirondack Railway Co. (1899) 160 N. Y. 225, 236 -238, 54 N. E. 689.
226 See Stimson, Popular Law-Making, Ch. VII.
W Churchill v. Rafferty (1915) XIV 0. G. 383; Cooley's Constitutional Limitations, 7th Ed., p. 716.
328 Cooley's Constitutional Limitations, 7th Ed., p. 812.
U. S. v. Toribio (1910) 15 Phil. 85.
S0 See generally Cooley on Taxation, 3d Ed., especially Chs. I-VI;
Cooley's Constitutional Limitations, 7th Ed., Ch. XIV.




510


1PILIPIINE GOVERNMENT


enterprise are to be avoided;
that provisions for t a x a t i o n
should be simple, so that they
may be understood by the people; that they should affect the
fewest practicable subjects of
taxation which will serve for the
general distribution of the burden." (President's Instructions to
the Philippine Commission.)
"That the rule of taxation in
said Islands shall be uniform."
(Philippine Bill, sec. 5, par. 16.)
"That the rule of taxation in
said Islands shall be uniform."
(Philippine Autonomy Act, sec.
3, par. 16.)


common    defence  and  general
welfare of the United States;
but all duties, imposts, and excises shall be uniform throughout the United States." (United
States Constitution, art. I, sec. 8,
par. 1.)
(State constitutions.) 21


Taxation is here considered not merely because of the
uniformity clause to be found in Philippine Organic Law,
but because sheltered under the larger aegis of due process
of law and the equal protection of the laws. We, of
course, confine discussion to constitutional features leaving fiscal matters such as assessment and collection for
the courses in Finance and Taxation.
Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes.2    They are not contracts between party
and party either express or implied, but are positive acts
of the government to the making and enforcing of which
231 Provisions described in Cooley on Taxation, 3d Ed. pp. 274-342.
282 Cooley's Constitutional Limitations, 7th Ed., p. 678; Cooley on
Taxation, 3d Ed., p. 1. Coulter, J., in Northern Liberties z. St.
John's Church (1850) 13 Pa. 104, 107, said: "I think the common
mind has everywhere taken in the understanding that taxes are a
public imposition, levied by authority of the government for the
purpose of carrying on the government in all its machinery and
operations-that they are imposed for a public purpose." See Loan
Association v. Topeka (1875) 20 Wall. 655, 22 L. Ed. 455.




BASIC PRINCIPLES


511


personal consent is not required.28 Taxes are classified
as either direct or indirect. They assume various forms,
of which the most usual are found in the Philippines."2
The power to tax is "the strongest, and most pervading
of all the powers of government, reaching directly or
indirectly to all classes of people.""5 Mr. Chief Justice
Marshall said that the power to tax involves the power to
destroy.28 The courts scarcely venture to declare any
restrictions on the power of taxation. Necessity, for instance, is not the governing consideration.87 "The power
of taxation being legislative, all the incidents are within
the control of the Legislature. The purposes for which
a tax shall be levied; the extent of taxation; the apportionment of the tax; upon what property or class of persons
the tax shall operate; whether the tax shall be general or
limited to a particular locality, and in the latter case, the
fixing of a district of assessment; and method of collection, and whether a tax shall be a charge upon both person
and property, or only on the land-are matters within the
discretion of the Legislature and in respect to which its
determination is final." 288
If one were to acquiesce with the views of two cynical
Frenchmen, one would perforce condemn all taxation as
a grave injustice. "The act of taxation consists," said
Louis XIV's minister, Colbert, "in so plucking the goose
(i. e. the people) as to produce the largest quantity of
feathers with the least possible amount of squealing."
8s Yangco v. City of Manila (1910) 17 Phil. 184.
234 See Cooley on Taxation, 3d Ed., Ch. I, and Churchill v. Rafferty
(1915) XIV O. G. 383.
235 Loan Association v. Topeka (1875) 20 Wall. 655, 22 L. Ed. 455.
236 McCulloch v. Maryland (1819) 4 Wheat. 316, 4 L. Ed. 579.
237 People v. Salem (1870) 20 Mich. 452, 4 Am. Rep. 400.
288 Genet v. City of Brooklyn (1885) 99 N. Y. 296, 306, 1 N. E.
777; People v. Reardon (1906) 184 N. Y. 431, 77 N. E. 970, 8 L.
R.A. (N.S.) 314, 112 Am. St. Rep. 628, 6 Ann. Cas. 515.




512


PHILIPPINE GOVERNMENT


"The art of government," said Voltaire, "is to compel
two-thirds of the people to pay all they can to support the
other one-third." Still a third son of France, Montesquieu, in his definition of taxation found in his Spirit of
the Laws meets such assertions and more fairly indicates
the justification of taxation. "Each citizen," he says, "contributes to the revenues of the State a portion of his property in order that his tenure of the rest may be secure."
In other words, taxes and protection are reciprocal. The
citizen pays the part demanded in order to secure the
benefits of organized society. Ordinarily, he can expect
for his contribution an equivalent in the protection of his
person and property, in adding to the value of such property, or in the creation or maintenance of public conveniences in which he shares-such for instance as roads,
bridges, sidewalks, pavements, and schools for the education of his children.29
Great as is the power of taxation, there are, nevertheless, positive limitations.20 From the standpoint of
science, Adam Smith enumerates certain maxims which
should guide the Legislature in its imposition of taxes.
In substance, these are: "1. That the subjects of every
state ought to contribute to the support of the government
as nearly as possible in proportion to the revenue which
they respectively enjoy under its protection. 2. The tax
which each is to pay ought, as respects the time and manner of payment, and the sum to be paid, to be certain and
not arbitrary. 3. It ought to be levied at the time and
in the manner in which it is most likely to be convenient
to the contributor to pay it; and 4. It ought to be so
contrived as both to take out and to keep out of the
pockets of the people as little as possible over and above
M See Vattel Law of Nations, Bk. I, Ch. 20; Union Refrigerator
Transit Co. v. Kentucky (1905) 199 U. S. 194, 50 L. Ed. 150.
30 See Cooley on Taxation, 3d Ed., Ch. III.




BASIC PRINCIPLES


513


what it brings into the public treasury." 34 President McKinley instructed the Commission to move along somewhat similar sensible lines by the words which are quoted
at the head of this section. Besides, as a further principle
which addresses itself principally to one's conception of
justice, double taxation, while lawful, should, wherever
possible, be prevented."     From   the standpoint of construction, the law imposing a tax is to be construed
"fairly for the government and justly for the citizen." 84
From a standpoint which practically attains no more than
an ethical injunction, Philippine statutes provide that
"taxation shall be just." 8, But more important than the
foregoing, due process of law and equality of the laws and
inherent restrictions outside the Constitution oblige the
government in the exercise of the taxing power to conform, among others, to the following rules: 1. That the
tax shall be for a public purpose. 2. That it shall operate
uniformly upon those subject to it. 3. That either the
person or the property taxed shall be within the jurisdiction of the government levying the tax. 4. That in the
assessment and collection of the tax certain guaranties
against injustice to individuals, especially by way of no34 Smith, Wealth of Nations, Bk. IV, Ch. 2. The true theory
and the one that ought to be observed in levying taxes is tersely
expressed in the forty-first section of the Constitution adopted by
Pennsylvania in 1776, which reads as follows: "No public tax,
custom or contribution shall be imposed upon, or paid by, the people
of this state, except by a law for that purpose; and before any law
be made for raising it, the purpose for which any tax is to be
raised ought to appear clearly to the legislature to be of more
service to the community than the money would be if not collected,
which being well observed, taxes can never be burdens."
M Cooley on Taxation, 3d Ed., pp. 391 et seq; Buck v. Beach
(1907) 206 U. S. 392, 51 L. Ed. 1106.
3s Hubbard v. Brainard (1869) 35 Conn. 563. But see sec. 176,
note 168 infra.
S Act 82, sec. 42; Act 1397, sec. 40; Adm. Code, secs. 2233, 2346.
P. I. Govt.-33.




514


PHILIPPINE GOVERNMENT


tice and opportunity for hearing, shall be provided.2
Taking these up ad seriatim, we find:
1. Our local laws all declare, in substance, that revenues shall be devoted exclusively to public purposes.2"
The term "public purposes," as employed to denote the
objects for which taxes may be levied, is "merely a term
of classification, to distinguish the object for which according to settled usage, the government is to provide,
from those which, by the like usage, are left to private inclination, interest or liberality. It creates a broad and
manifest distinction-one in regard to which there need
be neither doubt nor difficulty-between public works and
private enterprises, between the public conveniences which
it is the business of government to provide and those
which private interest and competition will supply whenever the demand is sufficient." 247 Notwithstanding these
words of a great judge, it is not always easy to draw the
line in all cases between what is a public purpose in this
sense and what is not. "The character of the agency employed does not and cannot determine the nature of the
end to be secured....       If the purpose is public,
it makes no difference that the agent by whose hand it
is to be attained is private. Nor, if the purpose were
private, would it make any difference that a public agent
was employed." 248 A resolution of the case frequently
depends upon the facts and circumstances concerning the
particular subject matter in regard to which the character
of the use is questioned.2  Common examples of government funds used for a public purpose are secular in24 See Willoughby on the Constitution, Vol. I, p. 584.
246Act 82, sec. 43, par. 1; Act 1397, sec. 42; Act 2408, sec. 50,
par. 1; Adm. Code, secs. 2234, 2346, 2614.
247 People v. Salem (1870) 20 Mich. 452, 4 Am. Rep. 400.
248 Perry v. Keene (1876) 56 N. H. 514.
249 Fallbrook Irrigation District v. Bradley (1896) 164 U. S. 112,
41 L. Ed. 369.






BASIC PRINCIPLES


515


struction, public charity, amusements and celebrations,
public health, highways, and irrigation of arid lands."~
Aid for private business enterprises is not a public purpose.2al As a corollary to the last statement, a recent decision of the Supreme Court of Massachusetts held that
a person lawfully engaged in business "cannot be driven
out by taxation to support his rival, even though that
rival be an arm of government." 28
However particular cases may be decided as falling
within or without the above rules, all must certainly agree
that neither the law nor public policy can look with
favor on special privileges for the few. The emphatic
words of the United States Supreme Court are: "To lay
with one hand the power of the government on the property of the citizen, and with the other to bestow it upon
favored individuals to aid private enterprises and build
up private fortunes, is none the less a robbery because it
is done under the forms of law and is called taxation." 853
A well-known Massachusetts opinion contains the
following:
"The power to levy taxes is founded on the right, duty,
and responsibility to maintain and administer all the governmental functions of the state, and to provide for the
public welfare. To justify any exercise of the power
requires that the expenditure which it is intended to meet
shall be for some public service, or some object which
concerns the public welfare. The promotion of the interests of individuals, either in respect of property or
business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However cer250 Cooley on Taxation, 3d Ed., pp. 192 et seq.
251 Cooley on Taxation, 3d Ed., pp. 206-208.
s62 Opinion of the Justices (1912) 211 Mass. 624, 98 N. E. 611,
42 L.R.A. (N.S.) 221.
2ss Loan Association v. Topeka (1875) 20 Wall. 655, 22 L. Ed. 455.




516


PHILIPPINE GOVERNMENT


tain and great the resulting good to the general public,
it does not, by reason of its comparative importance, cease
to be incidental. The incidental advantage to the public,
or to the state, which results from the promotion of
private interests, and the prosperity of private enterprises
or business, does not justify their aid by the use of public
money raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its
validity, as justifying a tax, and not the magnitude of the
interests to be affected, nor the degree to which the general advantage of the community, and thus the public
welfare, may be ultimately benefited by their promotion.
"The principle of this distinction is fundamental. It
underlies all government that is based upon reason rather
than upon force." 24
2. Coming now to the provision that taxation shall
be uniform, we find it re-enforced by Philippine statutory
law.25 It is, of course, true that notwithstanding this
basic rule absolute justice and equality are not humanly
attainable. "Perfect uniformity and perfect equality of
taxation...   in all the aspects in which the human mind can view it, is a baseless dream." 28 Thus
"there are doubtless many individual cases where the
weight of a tax falls unequally upon the owners of the
property taxed. This is almost unavoidable under every
system of direct taxation. But the tax is not rendered
illegal by such discrimination. Thus, every citizen is
bound to pay his proportion of a school tax, though he
have no children; of a police tax, though he have no
2 Lowell v. Boston (1873) 111 Mass. 454, 15 Am. Rep. 39.
U5 Act 82, sec. 42; Act 1397, sec. 40; Adm. Code, secs. 2233, 2346.
261 Head Money Cases (1884) 112 U. S. 580, 28 L. Ed. 798. See
also Commonwealth v. Savings Bank (1862) 5 Allen 428, 436; Grim
v. School Dist. (1868) 57 Pa. St. 433, 437.




BASIC PRINCIPLES


517


buildings or personal property to be guarded; or of a road
tax, though he never use the road." 267
Classification is permitted. In the case of New Orleans
v. Kaufman decided by the Supreme Court of Louisiana
and followed by the Attorney-General of the Philippines,
it was said: "The constitutional requirement that taxation
shall be equal and uniform throughout the State (art.
118) does not inhibit the legislature from, nor deprive it
of, the power of dividing the objects of taxation into
classes, but it does command the lawmaking department
of the Government to impose the same burden upon all
who are in the same class." "8 While the legislature possesses a wide latitude, the classification must have some
just and reasonable basis. In a quotation followed in the
same opinion of the Attorney-General, it was said:
"While the State may classify for the purposes of license
taxation, that is, taxation upon business or occupations,
and may thus tax one business without taxing another, it
cannot make a classification which is arbitrary and has no
just and reasonable basis...       Where a license
tax is imposed upon those of a certain business, it must be
levied without discrimination upon all engaged therein,
within the authority levying the tax. This is essential in
order that the tax may be equal and uniform as required
by the State constitutions, as well as under the provision
for equal protection of the laws...   256 Following
57 Union Refrigerator Transit Co. v. Kentucky (1905) 199 U. S.
194, 50 L. Ed. 150.
25829 La. Ann. 283 (1877), quoted in III Op. Atty. Gen. P. I
266. See also Villata v. Stanley (1915) XIV O. G. 170, distinguishing "equality" from "uniformity."
26 Judson on Taxation, pp. 599-601, quoted in III Op. Atty. Gen.
P. I. 266. "While reasonable classification is permitted, without
doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction,
bearing a reasonable and just relation to the things in respect
to which such classification is imposed; and classification cannot




518


PHILIPPINE GOVERNMENT


these principles, the Supreme Court of the Philippines has
held that the portion of section 5 of the Philippine Bill
providing "that the rule of taxation in said Islands shall
be uniform" is not contravened by a municipal ordinance
classifying and graduating license fees for fishing privileges by reference to the different classes of apparatus in
common use by those exercising such privileges.2~ Licenses for cockpits and the sale of liquors must, likewise,
conform to the rules of classification.26l
The statute may select the subjects for taxation, leaving others exempt without violating the constitutional
prohibition. The familiar rule is this: "The right to
make exemptions is involved in the right to select the
subjects of taxation and apportion the public burdens
among them, and must consequently be understood to
exist in the law-making power wherever it has not in
terms been taken away." 22 Our statutes name the
customary exemptions, such as a minimum value (fifty
pesos, one hundred pesos, or two hundred pesos according to the local division), burying grounds, churches, and
lands and buildings for religious, charitable, scientific, and
educational purposes; also homesteads prior to vesting of
title, machinery, and fruit trees and bamboo plants; these
statutes should be construed strictly though fairly.26
be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification.
Gulf, C. & S. F. R. Co. v. Ellis (1897), 165 U. S. 150, 155, 165, 41 L.
Ed. 666, 668, 671, 17 Sup. Ct. 255; Cotting v. Kansas City Stock
Yards Co. (Cotting v. Godard) (1901) 183 U. S. 79, 46 L. Ed. 92,
22 Sup. Ct. 30; Connolly v. Union Sewer Pipe Co. (1901), 184 U. S.
540, 559, 46 L. Ed. 679, 689, 22 Sup. Ct. 431." Southern Ry. Co. v.
Greene, 216 U. S. 400, (1910) 54 L. Ed. 536, 17 Ann. Cas. 1247.
260 U. S. v. Sumulong (1915), XIII O. G. 851.
261 III Op. Atty. Gen. P. I. 266; Op. Atty. Gen. P. I., Aug. 21, 1911.
262 See Cooley on Taxation, 3d Ed., pp. 262 et seq. quoted at p. 343.
268 Act 655, sec. 3, as amended by Act 680, sec. 1; Act 82, sec. 62;
Act 183, sec. 48; Act 1397, sec. 53; Act 1963, sec. 24; Adm. Code,




BASIC PRINCIPLES


519


Some courts hold that tax exemptions to enterprises primarily of a private nature stand on the same footing as
grants of public money derived from taxation." More
commonly such exemptions are assumed to be a valid
means of encouraging various species of industry." One
governmental agency should not, and here does not, attempt to tax the property of another governmental
agency.'    So the Attorney-General was of the opinion
that the municipality of San Felipe Neri had no right
to assess for taxation the property of the city of Manila
known as "El Deposito" "upon fundamental principles
of government." s7 It is beyond the competency of the
Philippine Government to levy a tax on articles imported
for the use of the United States Government.268 But the
fact that a railroad company is aided in its business by the
Philippine Government cannot of itself exempt it from
the burdens of taxation.269
3. Persons or property must be within the territorial
limits.270 In one case the United States Supreme Court
said: "It is also essential to the validity of a tax that the
property shall be within the territorial jurisdiction of the
taxing power...    The fact that such property
is visible, easily found and difficult to conceal, and the
tax readily collectible, is so cogent an argument for its
secs. 432, 2350, 2454, 2548. See Catholic Church v. Hastings (1906),
5 Phil. 701.
24 Brewer Brick Co. v. Brewer (1873), 62 Me. 62, 16 Am. Rep.
395; Weeks v. Milwaukee (1860), 10 Wis. 186.
265 Loan Association v. Topeka (1875), 20 Wall. 655, 22 L. Ed. 455.
266Op. Atty. Gen. P. I., March 14, 1910. See further Malcolm's
Compiled Municipal Code, pp. 154, 155, notes 4-9 and Acts cited under note 263.
27 III Op. Atty. Gen. P. I. 398.
26 XXIX Op. Atty. Gen. U. S. 442. See Act 355, sec. 390, as
amended.
2s9 XXIX Op. Atty. Gen. U. S. 164.
270 See Cooley on Taxation, 3d Ed., pp. 84-95.




520


PHILIPPINE GOVERNMENT


taxation at its situs, that of late there is a general consensus of opinion that it is taxable in the state where it
is permanently located and employed, and where it receives its entire protection, irrespective of the domicil
of the owner." 21 In another case, speaking of personal
and intangible property, the same Court said: "It has
long been held that personal property may be separated
from its owner, and he may be taxed on its account at
the place where the property is, although it is not the place
of his own domicil, and even if he is not a citizen or resident of the state which imposes the tax. Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 22, 35 L. Ed.
613, 616, 3 Inters. Com. Rep. 595, 11 Sup. Ct. 876; Tappan v. Merchants' Nat. Bank, 19 Wall. 490, 22 L. Ed.
189; People ex rel. Hoyt v. Tax & A. Com'rs, 23 N. Y.
224, 240. The same rule applies to intangible property.
Generally speaking, intangible property in the nature of
a debt may be regarded, for the purposes of taxation, as
situated at the domicil of the creditor and within the jurisdiction of the state where he has such domicil." 272 So a
municipality in the Philippines can not tax land beyond
its limits for municipal purposes.m
4. The Legislature determines the method of assessment and collection. Philippine law zealously safeguards
the rights of taxpayers, especially those delinquent. As
one further cardinal principle, it can be mentioned that
whatever property is worth for the purposes of income
and sale it is also worth for purposes of taxation.274
Even with these four fundamental rules working in
271 Union Refrigerator Transit Co. v. Kentucky (1905), 199 U. S.
194, 50 L. Ed. 150.
272 Buck v. Beach (1907), 206 U. S. 392, 51 L. Ed. 1106.
78 IV Op. Atty. Gen. P. I. 84 following Wells v. Weston (1856)
22 Mo. 384.
24 Adams Express Co. v. Ohio State Auditor (1897), 166 U. S.
185, 41 L. Ed. 965.




BASIC PRINCIPLES


521


his behalf, the security provided for the taxpayer does not
stop. He may find that the burden is not a tax but only an
unlawful confiscation for which redress can be obtained
under eminent domain. He must remember that he possesses the right of recovery of payment of an alleged tax
under protest and can bring suit for this purpose.'  But
a person who has paid a tax voluntarily and without objection or protest of any kind, cannot maintain an action
to recover the tax so paid.26 And ordinarily the claim
that a tax is illegal or that the law by virtue of which it
is imposed is unconstitutional, will not authorize a court
to restrain its collection by injunction.27 A further and
final elucidation is that of Mr. Chief Justice Marshall in
McCulloch v. Maryland, oft quoted but never without
gaining new favor:
"The power of taxing the people and their property is
essential to the very existence of government, and may be
legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may
choose to carry it. The only security against the abuse
of this power is found in the structure of the government
itself. In imposing a tax, the legislature acts upon its
constituents.  This is, in general, a sufficient security
against erroneous and oppressive taxation. The people
of a State, therefore, give to their government a right
of taxing themselves and their property, and as the exigencies of the government cannot be limited, they prescribe no limit to the exercise of this right, resting
confidently on the interest of the legislature and on the
influence of the constituents over their representatives to
guard themselves against its abuse." 276
75 See Ayala de Roxas v. City of Manila (1914), 27 Phil. 336.
276 Fernendez v. Shearer (1911), 19 Phil. 75.
27 Churchill v. Rafferty (1915), XIV O. G. 383.
3r 4 Wheat. 316, 4 L. Ed. 579 (1819). See also Providence Bank
v. Billings (1830), 4 Pet. 514, 561, 7 L. Ed. 939, in which the Chief




522


PHILIPPINE GOVERNMENT


~ 129. Eminent domain. —


Philippines.
"That private property shall
not be taken for public use without just compensation." (President's Instructions to the Philippine Commission.)
"That the Government of the
Philippine Islands is hereby authorized, subject to the limitations and conditions prescribed
in this Act, to acquire, receive,
hold, maintain, and convey title
to real and personal property,
and may acquire real estate for
public uses by the exercise of the
right of eminent domain." Philippine Bill, sec. 63.)
"That the government of the
Philippine Islands may grant
franchises, privileges, and concessions, including the authority
to exercise the right of eminent
domain for the construction and
operation of works of public
utility and service...: Provided, That no private property
shall be taken for any purpose
under this section without just
compensation paid or tendered
therefor and that such authority
to take and occupy land shall not
authorize the taking, use, or oc

United States.
"Nor shall private property be
taken for public use without just
compensation."  (United States
Constitution, fifth amendment,
last clause.)


Justice said: "This vital power may be abused; but the interest, wisdom, and justice of the representative body, and its relation with its
constituents, furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise
legislation generally."
2 See generally Lewis on Eminent Domain, 2d Ed., and Cooley's
Constitutional Limitations, 7th Ed., Ch. XV.




BASIC PRINCIPLES


523


cupation of any land except such
as is required for the actual necessary purposes for which the franchise is granted." (Philippine
Bill, sec. 74, portion.)
"Private property shall not be
taken for public use without just
compensation." (Philippine Autonomy Act, sec. 3, par. I, last
sentence.)
"That the government of the
Philippine Islands may grant
franchise and rights, including
the authority to exercise the right
of eminent domain, for the construction and operation of works
of public utility and service,...: Provided, That no private property shall be damaged
or taken for any purpose under
this section without just compensation, and that such authority
to take and occupy land shall not
authorize the taking, use, or occupation of any land except such
as is required for the actual necessary purposes for which the franchise is granted."  (Philippine
Autonomy Act, sec. 28, portion.)
The State can displace the rights of private ownership
and control by appropriating private property against the
owner's will through an exercise of sovereign authority.
The government impliedly reserves this right when property is acquired from it or under its protection.2" This
power which we denominate "eminent domain" is vested
in the Philippine Government by the provisions above
quoted.281 The time, manner, and occasion of its exercise are then wholly in the control and discretion of the
28 Cooley's Constitutional Limitations, 7th Ed. pp. 752, 753.
281 XXIV Op. Atty. Gen. U. S. 640.




524


PHILIPPINE GOVERNMENT


Legislature, except as restrained by the organic law.m
The Civil Code in article 349 provides: "No one shall
be deprived of his property, except by competent authority
and with sufficient cause of public utility, always after the
proper indemnity." This article, Solicitor-General Araneta held, is broader in its scope than the provisions of the
United States Constitution requiring compensation for
property taken for public use.8    Other public laws provide the manner of exercising the right.28 The Government of the United States and the Government of the
Philippine Islands, and by delegation, the Department of
Mindanao and Sulu and provinces, municipalities, and
railroad corporations, are authorized to institute actions
for the enforcement of the right of eminent domain. The
necessity or advantage of exercising the right are determined for the Insular Government by the Governor-General; for the Department of Mindanao and Sulu by the
Departmental Governor; for provinces and municipalities
by the provincial board with the approval of the Governor-General.28 But while the State may delegate the
power, it may resume it at will, subject to property rights
and the duty of paying therefor.2e A statute conferring
upon a railroad corporation the exceptional privilege of
exercising the right of eminent domain will be construed
strictly in favor of landowners whose property is
affected.286
Eminent domain, as accurately defined, "is the rightful
282 Fairchild v. St. Paul (1891), 46 Minn. 540, 49 N. W. 325.
288 I Op. Atty. Gen. P. I. 265. See also Santos v. Director of Lands
(1912), 22 Phil. 424.
284 See Code of Civil Procedure, sees. 241-253, as amended; Act
294; Act 1258, as amended by Act 1592; Act 83, sec. 20; Act 1458,
sec. 9; Act 2249; Adm. Code, various secs.
ss8 Adm. Code, secs. 80 (h), 2032 (e), 2191, 2571 (q), 2595.
28s People v. Adirondack Railway Co. (1899), 160 N. Y. 225, 54
N. E. 689.
286Tenorio v. Manila Railroad Co. (1912), 22 Phil. 411.






BASIC PRINCIPLES


525


authority, which exists in every sovereignty, to control
and regulate those rights of a public nature which pertain
to its citizens in common, and to appropriate and control
individual property for the public benefit, as the public
safety, necessity, convenience, or welfare may demand." 7 The power is exactly as circumscribed in the
benign provision of the Constitution in question-the
right of the State as sovereign to take private property for
public use upon making just compensation. There is no
limitation upon its exercise, except that the use must be
public, compensation must be made, and due process of
law observed."8 An analysis of the constitutional provision resolves into the following components: Private
property; a taking; public use; and just compensation.
As to the first, the power of the State to take private
property for the public use reaches every description of
property within its jurisdiction." On the other hand,
the constitutional prohibition protects all the essential elements of ownership which make property valuable.9
Where there is a practical destruction or material impairment of value of private property, or where the owner
is deprived of its ordinary use, there is a "taking" which
demands compensation; but otherwise, where the possession or enjoyment of property is not disturbed, or one
is merely put to some extra expense in warding off consequences, or where there is mere personal inconvenience or
287 Cooley's Constitutional Limitations, 7th Ed. p. 754.
288 Secombe v. Railroad Co. (1874), 23 Wall. 108, 23 L. Ed. 67;
People v. Adirondack Railway Co. (1899), 160 N. Y. 225, 54 N. E.
689.
289 Eastern Railroad Co. v. Boston & M. R. R (1872), 111 Mass.
125, 15 Am. Rep. 13; Cincinnati v. L. & N. Ry. (1912), 223 U. S. 390,
56 L. Ed. 481; Cooley's Constitutional Limitations, 7th Ed. pp. 756 -759-but not money.
290 Eaton. Boston, C. & M. R R. (1872), 51 N. H. 504, 12 Am.
Rep. 147. 




526


PHILIPPINE GOVERNMENT


annoyance to the occupant."1 A prohibition simply upon
the use of property for purposes that are declared, by
valid legislation, to be injurious to the health, morals, or
safety of the community, cannot, in any just sense, be
deemed a taking or an appropriation of property for the
public benefit.22 Generally, too, the taking must be limited to the property needed for the use for which the appropriation is made.2
"The right of eminent domain," it has been said, "does
not imply a right in sovereign power to take the property
of one citizen and transfer it to another, even for a full
compensation, where the public interest will be in no way
promoted by such transfer." "       Philippine statute law
names the following purposes for which private property
M1 Manigault v. Springs (1905), 199 U. S. 473, 483, 50 L. Ed. 274;
Cooley's Constitutional Limitations, 7th Ed. pp. 781 et seq.
92 Mugler v. Kansas (1887), 123 U. S. 623, 668, 31 L. Ed. 205.
"8 Matter of Albany Street (1834), 11 Wend. 149, 25 Am. Dec.
618; Cooley's Constitutional Limitations, 7th Ed. pp. 779-781. But
the Organic Act for the Department of Mindanao and Sulu (Act
2408) in sec. 47 (n) (Adm. Code, sec. 2611 (n)) contains the following as to excess condemnation by a municipal council: "To acquire,
take, condemn, or appropriate more land and property than is needed
for actual construction in connection with any improvement herein
authorized: Provided, however, That the additional land and property so authorized to be acquired, taken, condelmned, or appropriated
shall be no more than sufficient to form suitable building sites abutting on such improvement. After so much of the land and property
has been appropriated for the improvement as is needed therefor, the
remainder may be sold or leased. The municipal council is hereby
further authorized and empowered to provide by general or special
ordinance, the manner in which the power herein granted may be
exercised, subject to the provisions of general law as to procedure:
And provided further, That no ordinance passed pursuant to the provisions of this subsection shall be valid or take effect until it shall
have been approved by the provincial board and the department governor."
Beekman v. Saratoga & Schenectady R. R. Co. (1831), 3 Paige,
73, 22 Am. Dec. 679.






BASIC PRINCIPLES


527


may be taken: Schools, cemeteries, crematories, parks,
playgrounds, public buildings, streets, market sites, public
plazas, sidewalks, bridges, artesian wells, drainage, water
supply and sewerage systems, cess-pools, ferries, levees,
wharves, piers, and railroads. Presumably all these are
"public uses."  "If we examine the subject critically,
we shall find that the most important consideration in
the case of eminent domain is the necessity of accomplishing some public good which is otherwise impracticable, and we shall also find that the law does not so
much regard the means as the need." 295 But it can never
be admitted that the Legislature has an unlimited right to
destroy property without compensation, on the ground
that destruction is not an appropriation to public use.
For example, "When a healthy horse is killed by a public
officer, acting under a general statute, for fear that it
should spread disease, the horse certainly would seem to
be taken for public use as truly as if it were seized to drag
an artillery wagon. The public equally appropriate it,
whatever they do with it afterwards." 296
Most of our local cases on eminent domain concern the
practical point of "just compensation." This is a judicial question.297 "Compensation" means an equivalent for
the value of the property taken. The word "just" is
used in order to intensify the meaning of the word "compensation;" to convey the idea that the equivalent to be
rendered for the property taken shall be real, substantial,
full, ample. "Just compensation," consequently, according to our Supreme Court, "means a fair and full equiva29 People v. Salem (1870), 20 Mich. 452, 480, 4 Am. Rep. 400.
296 Miller v. Horton (1891), 152 Mass. 540, 10 L.R.A. 116.
m7 City of Manila v. Estrada (1913), 25 Phil. 208; Manila Railroad
Co. v. Velasquez (1915), XIII O. G. 2216; Monongahela Navigation
Co. v. U. S. (1893), 148 U. S. 312, 37 L. Ed. 463. Compare with City
of Manila v. Battle (1914), 27 Phil. 34.




528


PHILIPPINE GOVERNMENT


lent for the loss sustained.298 In the language of the
United States Supreme Court, "the just compensation required by the Constitution to be made to the owner is to
be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has
been deprived of, and no more. To award him less would
be unjust to him; to award him more would be unjust to
the public." " The general rule is that the market value
of the property taken plus the consequential damages, if
any, minus the consequential benefits, if any, is the just
compensation to which the owner of condemned property
is entitled under the law.8~ The difficulty arises in the
application of the rule."1 Exceptional circumstances will
modify the most closely guarded rules.'0 The Supreme
Court of the United States in a carefully worded statement, followed by the Supreme Court of the Philippines,
marks out the scope of the inquiry, as follows: "In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a
sale of property between private parties. The inquiry
in such cases must be what is the property worth in the
98 City of Manila v. Estrada, id.; Manila Railroad Co. v. Velasquez, id.
as Bauman v. Ross (1897), 167 U. S. 548, 574, 42 L. Ed. 270. See
City of Manila v. Corrales (1915), XIV O. G. 53. "These words
cover more than the mere value of the quantity taken, measured by
rods or acres. They intend nothing less than to save the owner from
suffering in his property or estate, by reason of this setting aside of
his right of property,-as far as compensation in money can go,under the rules of law applicable to such cases." Bangor & Piscataquis R. Co. v. McComb (1872), 60 Me. 290, 296, 297.
00 Manila Railroad Co. v. Rodriguez (1909), 13 Phil. 347; Manila
Railroad Co. v. Fabie (1910), 17 Phil. 206; City of Manila v.
Estrada (1913), 25 Phil. 208; Manila Railroad Co. v. Velasquez
(1915), XIII O. G. 2216.
801 City of Manila v. Estrada, id.; Manila Railroad Co. v. Velasquez, id.
802 City of Manila v. Corrales (1915), XIV O. G. 53.






BASIC PRINCIPLES


529


market, viewed not merely with reference to the uses to
which it is at the time applied, but with reference to the
uses to which it is plainly adapted; that is to say, what
is it worth from its availability for valuable uses?.. 
As a general thing, we should say that the compensation to
the owner is to be estimated by reference to the uses for
which the property is suitable, having regard to the existing business or wants of the community, or such as may
be reasonably expected in the immediate future." 80a The
market value of property, generally speaking, is the price
which it will bring when it is offered for sale by one who
desires but is not obliged to sell it, and is paid by one who
is under no necessity of buying it.80~ "When we speak
of the market value of property taken under the power
of eminent domain, we mean the value which purchasers
generally would pay for it. We do not mean that a
purchaser would pay who had no particular object in
view in purchasing, and no definite plan as to the use to
which to put it. The owner has a right to its value for
the use for which it would bring the most in the market." 805 Later, in the same case, Mr. Justice Johnson,
emphasizing his words by italics, continues: "In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in
a sale of property between private parties. The inquiry,
in such cases, must be what is the property worth in the
market, viewed not merely with reference to the uses
to which it is at the time applied, but with reference to
88 Mississippi and Rum River Boom Co. v. Patterson (1879) 98
U. S. 403, 407, 408, 25 L. Ed. 206, followed in the Estrada, Velasquez
and Corrales cases.
8 Lewis on Eminent Domain, 2d Ed., par. 478, followed in City
of Manila v. Estrada, id., and Manila Railroad Co. v. Velasquez, id.
805 City of Manila v. Corrales, id. Definitions of "Market Value"
also given in Macondray & Co., Inc., v. Sellner (1916), XIV O. G.
520.
P. I. Govt.-34.




530


IPHILIPPINE GOVERNMENT


the uses to which it is plainly adapted, that is to say, what
is it worth from its availability for valuable uses?" The
prices of approximately coeval date in the immediate vicinity paid by one who is desirous but not obliged to sell
to one who is desirous but not obliged to buy are admissible.80~ The assessed valuation of the land in question
is competent evidence but is at best of little value.807 The
commissioners can, and usually do, view the premises to
understand and determine the weight of conflicting evidence.808 Consequential damages in connection with the
consequential benefits to the remainder of the property
not taken constitute the second question to be decided.
"In making this estimate, there must be excluded from
consideration those benefits which the owner receives only
in common with the community at large in consequence
of his ownership of other property, and also those incidental injuries to other property, such as would not give
to other persons a right to compensation; while allowing
those which directly affect the value of the remainder of
the land not taken, such as the necessity for increased
fencing, and the like." 809 In this jurisdiction, actual payment or tender before taking is not necessary.810
~ 130. Police power.811-"The police power and the
right to exercise it," said Mr. Justice Johnson in United
States v. Gomez, 12 "constitute the very foundation, or at
least one of the cornerstones of the State." The United
806 City of Manila v. Estrada, Id.
807Tenorio v. Manila Railroad Co. (1912), 22 Phil. 411.
808 City of Manila v. Estrada, id.; Manila Railroad Co. zi. Velasquez, id.
809 Cooley's Constitutional Limitations, 7th Ed., p. 823.
810 Manila Railroad Co. v. Paredes (1915), XIV O. G. 152.
811 See generally Freund on Police Power; Cooley's Constitutional
Limitations, 7th Ed. Ch. XVI; 6 R. C. L. pp. 183-244; Burgess' Political Science and Constitutional Law, Vol. I, pp. 214-216 (historical
development).
81 XIII 0. G. 1628, 1629 (1915).






BASIC PRINCIPLES


531


States Supreme Court tritely describes it as "the most
essential of powers, at times the most insistent and always
one of least limitable of the powers of government." 'l
The police power is a necessary attribute of every civilized government, inherent in sovereignty, existing independent of the written constitution. There is no reason
to doubt that the police power exists in the Philippines in
the central government, and by delegation to municipalities, in the same form and to the same extent as in any
State of the American Union. In fact, our Supreme
Court has held on both reason and authority "that in this
jurisdiction the provisions of the Act of Congress of
July 1, 1902, were not intended to have the effect, and
did not have the effect, of denying to the Government of
the Philippine Islands the right to exercise the sovereign
police power in the promotion of the 'general welfare'
and the 'public interest.' "814  Carrying the principle
further in a later case, Mr. Justice Trent said: "There
can be no doubt that the exercise of the police power of
the Philippine Government belongs to the Legislature and
that this power is limited only by the Acts of Congress
and those fundamental principles which lie at the foundation of all republican forms of government." 816
Any attempt to define the police power. satisfactorily
would be pedantic and superfluous. It is not susceptible of
circumstantial precision.816 Yet it must be admitted that
many attempts at definition have been made. It has been
defined as the power of government, inherent in every
sovereign, to the extent of its dominions (License Cases,
38 District of Columbia v. Brook (1909), 214 U. S. 138, 149, 53
L. Ed. 941.
814 U. S. v. Toribio (1910), 15 Phil. 85; Punzalan v. Ferriols
(1911), 19 Phil. 214.
816 Churchill v. Rafferty (1915), XIV 0. G. 383, 388.
816 Eubank v. City of Richmond (1912), 226 U. S. 137, 57 L. Ed.
156.




532


PHILIPPINE GOVERNMENT


5 How. 483); the power vested in the legislature to
make such laws as they shall judge for the good of the
state and its subjects (Commonwealth v. Alger, 7 Cush.
(Mass.) 53, 85); the power to govern men and things,
extending to the protection of lives, limbs, health, comfort, and quiet of all persons, and the protection of all
property within the state (Thorpe v. Rutland, etc. Co., 27
Vt. 140, 149); the power to prescribe regulations to
promote the health, peace, morals, education and good
order of the people, and to legislate so as to increase the
industries of the state, develop its resources and add to
its wealth and prosperity. (Barbier v. Connolly, 113 U. S.
27. )817
The police power is based on the Latin maxims: Salus
populi suprema est lex-The welfare of the people is the
first law-and Sic utere tio ut alienuzn non laedas-So
use your own as not to injure another's property.88 Its
source is the social compact by which an individual must
part with some rights and privileges for the common
good.819 "Every citizen of every community, in civilized
society, must bear certain burdens imposed for the good
of all." 820 "We think it is a settled principle, growing out
of the nature of well ordered civil society, that every
holder of property, however absolute and unqualified
may be his title, holds it under the implied liability that
his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal
right to the enjoyment of their property, nor injurious
to the rights of the community...    Rights of
817 See U. S. v. Pompeya (1915), XIII O. G. 1684; Churchill v.
Rafferty (1915), XIV O. G. 383; 6 R. C. L. pp. 185-187.
818 Broom's Legal Maxims, 8th Ed. p. 365; 6 R. C. L. 187. See
Tidewater Ry. Co. v. Shartzer (1907) 107 Va. 562, 567, 17 L.R.A.
(N. S.) 1053.
819 Munn v. Illinois (1877), 94 U. S. 113, 24 L. Ed. 77.
n0 Case v. Board of Health (1913), 24 Phil. 250, 278.




BASIC PRINCIPLES


533


property, like all other social and conventional rights, are
subject to such reasonable limitations in their enjoyment
as shall prevent them from being injurious and to such
reasonable restraints and regulations established by law,
as the legislature, under the governing and controlling
power vested in them by the constitution, may think necessary and expedient." 821 It is exercisable largely to secure
reform in morals, sanitation, or safety, to prevent fraud,
to protect the people against the consequences of incapacity or ignorance, to promote the general welfare, and
to conserve the natural resources.82 Its realm is to guard
against abuse of individual liberty.8m Since the boundary
line can not be determined by any general formulae in
advance, recourse has been had to the gradual process of
judicial inclusion and exclusion.824 In a general way, the
police power may be said to extend to all the great public needs.8" To quote briefly from decisions of the United
States Supreme Court, there seems to be no doubt that
it extends "to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals." 826 "The police power of a
state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, public morals or the public safety." 827 "The police power is not
confined to the suppression of what is offensive, disor821 Commonwealth v. Alger (1851), 7 Cush. 53, 84, quoted with
approval in Fabie v. City of Manila (1912), 21 Phil. 486, 493; U. S. v.
Villareal (1914), 28 Phil. 390.
822 Stimson, Popular Law-Making, pp. 142-145; 6 R. C. L. pp.
206-212; 8 Cyc. pp. 866 et seq.
s23 Burgess' Political Science and Constitutional Law, Vol. I, p. 216.
8246 R. C. L. p. 187.
825 Camfield v. U. S. (1897), 167 U. S. 518, 42 L. Ed. 260; Noble
State Bank v. Haskell (1911), 219 U. S. 104, 55 L. Ed. 112.
826 Beer Co. v. Massachusetts (1878), 97 U. S. 25, 24 L. Ed. 989.
27 Chicago, B. & Q. R. Co. v. Illinois (1906), 200 U. S. 561, 592,




534


PHILIPPINE GOVERNMENT


derly, or insanitary," but "extends to so dealing with the
conditions which exist in the state as to bring out of them
the greatest welfare of its people." 828 Mr. Justice Johnson, delivering the opinion of the Supreme Court of the
Philippines, said: "The police power of the state may be
said to embrace the whole system of internal regulation,
by which the state seeks not only to preserve public order
and to prevent offenses against the state, but also to establish for the intercourse of citizen with citizen, those
rules of good manners and good neighborhood, which are
calculated to prevent a conflict of rights, and to insure to
each the uninterrupted enjoyment of his own, so far as
is reasonably consistent, with a like enjoyment of the
rights of others. The police power of the State includes
not only the public health and safety, but also the public
welfare, protection against impositions and generally the
public's best interest." 29  In another case the same
Justice said: "The police power of the State extends to
the protection of the lives, limbs, health, comfort, and
quiet of all persons, and the protection of all property
within its borders. Under the general police power of
the State, persons and property are subjected to all kinds
of restrictions and burdens in order to secure the general
health, comfort, and prosperity of all." 880
In addition to various powers which fall under the
name of "police power" and which ordinarily are spe50 L. Ed. 596, followed in Eubank v. Richmond (1912), 226 U. S.
137, 57 L. Ed. 156.
828 Bacon v. Walker (1907), 204 U. S. 311, 318, 51 L. Ed. 499.
See 6 R. C. L. p. 203.
89 U. S. v. Pompeya (1915), XIII O. G. 1684, 1686.
880U. S. v. Gomez (1915), XIII O. G. 1628, 1630. "The extent
and limits of what is known as the police power have been a fruitful
subject of discussion in the appellate courts of nearly every State in
the Union. It is universally conceded to include everything essential
to the public safety, health, and morals, and to justify the destruction
or abatement, by summary proceedings, of whatever may be regarded




BASIC PRINCIPLES


535


cifically enumerated in the statute, general grants of
police powers to municipal corporations are frequently referred to as the "general welfare clause" of the municipal charter in which they are found.881 Under such provisions, a municipality by virtue of its police power may
adopt ordinances to secure the peace, safety, health, morals, and the best and highest interests of the municipality.882 General welfare clauses have, under the police
power of a state, been given wide application by municipal authorities, and have in their relation to the particular
circumstances of the case been liberally construed by the
courts.888 But the power is limited by the purpose for
which it is granted; that is to regulations for peculiarly
local needs.884 And ordinances passed in virtue of the implied power must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State.886
This all pervading power rises superior even to the constitutional provision regarding obligation of contracts;
even a constitutional provision is not designed to interfere with it.886 The familiar rule is that this power, or
the right to exercise it, cannot be bargained away by the
as a public nuisance." Lawton v. Steele (1894), 152 U. S. 133, 136,
38 L. Ed. 385, quoted in U. S. v. Toribio (1910), 15 Phil. 85, 97. See
also Case v. Board of Health (1913), 24 Phil. 250.
881 See U. S. v. Pacis (1915), XIII O. G. 1778.
882 Case v. Board of Health (1913), 24 Phil. 250.
a88 IV Op. Atty. Gen. P. I. 675.
884 Elliott, Municipal Corporations, 2d Ed., p. 49.
835 Dillon's Municipal Corporations, 5th Ed. Vol. I, sec. 580: U. S.
v. Abendan (1913), 24 Phil. 165; U. S. v. Chan Tienco (1913), 25
Phil. 89. See generally Malcolm's Compiled Municipal Code, pp.
119 et seq.
836 New Orleans Gaslight Co. v. Louisiana Light and Heat Producing and Mfg. Co. (1885), 115 U. S. 650, 29 L. Ed. 516; Barbier
v. Connolly (1885), 113 U. S. 27, 28 L. Ed. 923.




536


PHILIPPINE GOVERNMENT


State.3  The right is a continuing one.    For example,
a business lawful to-day may, in the future, because of
the changed situation, the growth of population, or other
causes, become a menace to the public health and welfare, and be required to yield to the public good.338
The police power finds reason for its exercise in many
directions, some to be found discussed in other sections
of this chapter.89 Thus "the police power of the state
has been exercised in controlling and regulating private
business, even to the extent of the destruction of the property of private persons, when the use of such property
became a nuisance to the public health and convenience." 840 No longer is the State's interference with
the use of private property confined to the suppression of
nuisances. The quarantine, isolation, and even the
slaughter of cattle suffering from infectious or contagious diseases are universally recognized as typical examples of the proper exercise of this power, in any case
where the controlling public necessity for the checking
of the ravages of such disease demands such interference
with or destruction of the property of individuals, and
provided the means adopted are reasonably necessary for
the accomplishment which it is sought to attain.341 The
Supreme Court of the Philippines, in a bold and pioneer
spirit on which it is to be congratulated, will even extend
the power to cover statutes prompted and inspired by
337 Case v. Board of Health (1913), 24 Phil. 650; U. S. v. Gomez
(1915), XIII O. G. 1628.
3s8 Dobbins v. Los Angeles (1904), 195 U. S. 223, 238, 49 L. Ed.
169.
88 See 6 R. C. L. pp. 217 et seq.
840 U. S. v. Pompeya (1915), XIII O. G. 1684, citing cases. See to
same effect Fabie v. City of Manila (1912), 21 Phil. 486 and U. S. v.
Gomez (1915), XIII O. G. 1628.
341 Punzalan v. Ferriols (1911), 19 Phil. 214, 221. See on Nuisances, Iloilo Cold Storage Co. v. Municipal Council of Iloilo (1913),
24 Phil. 471.






BASIC PRINCIPLES


537


esthetic considerations."   The court's view in the case
in which it arrived at this conclusion was that it is not
the adoption of a new principle, but merely the extension
of a well-established principle to hold that the police
power may regulate and restrict uses of private property
(billboards) when devoted to advertising which is offensive to the sight. Passing on to subjects, other than
property, in Smiley v. Kansas, the United States Supreme
Court said: "Undoubtedly there is certain freedom of
contract which cannot be destroyed by legislative enactment. In pursuance of that freedom, parties may seek
to further their business interests, and it may not be always easy to draw the line between those contracts which
are beyond the reach of the police power, and those which
are subject to prohibition or restraint. But a secret arrangement, by which, under penalties, an apparently existing competition among all the dealers in a community in
one of the necessaries of life is substantially destroyed,
without any merging of interests through partnership or
incorporation, is one to which the police power extends." '8 Reasonable regulations for determining the
qualifications of those engaged in the practice of Medicine and Surgery, Dentistry, Pharmacy, Law, and other
professions, and in the trades of Plumbing, Horseshoeing, Barbering, etc., and punishing those who attempt to
engage therein in defiance of such provisions are constitutional.8" The right of the State to regulate reasonably
842 Churchill v. Rafferty (1915), XIV O. G. 383.
848 196 U. S. 447, 457, 49 L. Ed. 546 (1905); Grenada Lumber Co.
v. Mississippi (1910), 217 U. S. 433, 440, 54 L. Ed. 826.
8"U. S. v. Gomez (1915), XIII O. G. 1628, citing many cases including Dent v. West Virginia (1889), 129 U. S. 114, 32 L. Ed. 623;
Hawker v. New York (1898), 170 U. S. 189, 42 L. Ed. 1002; and
Reetz v. Michigan (1903), 188 U. S. 505, 47 L. Ed. 563. The court
also uses the following well-chosen language: "The trade of plumbing vitally affects the health of the people. The lives of thousands
of people may depend upon the result of the work of an engineer.




538


PIILIPPINE GOVERNMENT


certain occupations which may become unsafe or dangerous when unrestrained with a view to promote the public health and welfare has been often decided.845 The
power to regulate the carrying on of certain lawful occupations in a State includes the power to confine the
carrying on of the same to certain limits whenever such
restriction may reasonably be found necessary to subserve
the ends for which the police power exists.346 The mode
of payment of wages, as by requiring payment in cash,
can be regulated.347 Laws prohibiting the employment
of adult males for more than a stated number of hours
per day or week are not valid unless reasonably necessary
to protect the public health, safety, morals or general welfare, because the right to labor or employ labor on such
The property and life of citizens of the state may depend upon the
advice of a lawyer, and no profession or trade is more directly connected with the health and comfort of the people than that of a physician and surgeon. The practice of medicine and surgery is a vocation which very nearly concern the comfort, health, and life of every
person in the land. Physicians and surgeons have committed to their
care most important interests, and it is of almost imperious necessity
that only persons possessing skill and knowledge shall be permitted
to practice medicine and surgery. For centuries the law has required
physicians to possess and exercise skill and learning. Courts have
not hesitated to punish those who have caused damages for lack of
such skill and learning. The requirement of the Philippine Legislature that those who may engage in such professions shall be possessed of both knowledge and skill before entering the same, is no
new principle of law. It is an exercise of the right of the State,
under its police power, which has been recognized for centuries. No
one can doubt the great importance to the community that health,
life, and limb should be protected and should not be left in the hands
of ignorant pretenders, and secure them the services of reputable,
skilled, and learned men."
486 People v. Van de Carr (1905), 199 U. S. 552, 50 L. Ed. 305.
346Ex parte Quong Wo (1911), 161 Cal. 220, 118 Pac. 714; Crowley v. Christensen (1890), 137 U. S. 90, 34 L. Ed. 620.
347 Stimson, Popular Law-Making, Ch. XI, p. 236. See Act 2549
of the Philippine Legislature.






BASIC PRINCIPLES


539


terms as may be agreed upon is a liberty or property right
guaranteed to such persons by the Constitution and with
which the state cannot interfere.848  It is competent, however, for the state to forbid the employment of children
in certain callings, merely because it believes such prohibition to be for their best interests, although the prohibited employment does not involve a direct danger to morals, decency, or of life or limb.84  "All the decisions rest
upon the proposition that the State in its sovereign power
has the right, when     necessary to substitute itself as
guardian of the person of the child for that of the parent
848Lochner v. New York (1905), 198 U. S. 45, 49 L. Ed. 937;
State v. Shorey (1906), 48 Or. 396, 398, 24 L. R. A. (N. S.) 1121.
Compare with the authoritative article by Professor Frankfurter,
Hours of Labor and Realism in Constitutional Law, XXIX Harvard
Law Review, Feb., 1916, p. 353. See generally John R. Commons,
Principles of Labor Legislation, pp. 237-246.
849 State v. Shorey, id. Mr. Freund, in his work on Police Power,
sec. 259, says: "The constitutionality of legislation for the protection
of children or minors is rarely questioned; and the Legislature is
conceded a wide discretion in creating restraints."
"As to children there is, of course, no question. Laws limiting their
labor are perfectly constitutional, and some child-labor laws exist
already in all States and Territories except Nevada.... Undoubtedly climatic effects, social conditions, and dozens of other
reasons make it difficult, if not unwise, to attempt to have the same
rules as to hours of labor in all the States of our wide country...  And the age limit fixed for such employment is (without
regard to schooling) under twelve, in Idaho and Maryland; under
fourteen in Delaware, Illinois, and Wisconsin; and under fourteen
for boys and sixteen for girls in Washington, if without permit, and
under fifteen, for more than sixty days without the consent of the
parent or guardian in Florida; in other States the prohibition rests
on educational reasons, and covers only the time of year during
which schools are in session; thus, under eight during school hours,
or fourteen without certificate (Missouri); under fourteen during
the time or term of school sessions (Connecticut, Colorado, Massachusetts, Idaho, Kansas, Kentucky, Minnesota, New York, North
Dakota); or under fourteen during actual school hours (Arizona,
Kentucky, Nebraska, Oregon); or under fifteen in Washington, and




540


PHILIPPINE GOVERNMENT


or other legal guardian, and thus to educate and save the
child from a criminal career; that it is the welfare of the
child that moves the state to act, and not to inflict punishment or to mete out retributive justice for any offense
committed or threatened. In other words, to do that which
it is the duty of the father or guardian to do and which the
law assumes he will do by reason of the love and affection he holds for his offspring and out of regard for the
child's future welfare." 60 The state, in the exercise of
its police power, has the undoubted right to provide for
the detention and treatment in hospitals controlled by
it of those who are habitual drunkards. "The state has
the power to reclaim submerged lands, which are a
menace to the public health, and make them fruitful.
Has it not, also, the power to reclaim submerged men,
overthrown by strong drink, and help them to regain
self-control?" 85   The   social evil can   be controlled;
municipalities have authority to make reasonable regulations confining houses of prostitution to a specified district
and providing for medical inspection of the inmates.352
The foregoing naturally are merely illustrations of
equally strong facts which can be found in literally thousands of cases.853
under sixteen as to those who cannot read and write (Colorado,
Connecticut, Illinois) or have not the required school instruction
(Idaho, New York), or during school hours (Arkansas, Montana),
or who have not a labor permit (Maryland, Minnesota, Wisconsin)."
Stimson, Popular Law-Making, Ch. XI, pp. 215, 222.
360 Mill v. Brown (1907), 31 Utah, 473, 482, 120 Am. St. Rep. 935.
See also In re Sharp (1908), 15 Idaho, 120, 18 L.R.A. (N. S.) 886.
851 Leavitt v. City of Morris (1908), 105 Minn. 170, 17 L. R. A.
(N. S.) 984.
868V Op. Atty. Gen. P. I. 656; L'Hote v. New Orleans (1900), 177
U. S. 587, 44 L. Ed. 899.
8r Churchill v. Rafferty (1915), XIV O. G. 383 gives these examples: Laws providing for the regulation of wages and hours of labor
of coal miners (Rail & River Coal Co. v. Ohio Industrial Commission, 236 U. S. 338); prohibiting the payment of wages in company




BASIC PRINCIPLES


541


Necessarily the police power has its limits. It must
stop when it clashes with the prohibitions of the Constitution  (except the obligation     of contracts clause).8"
Nevertheless, the constitutional limitations allow a wide
range of judgment.35 Says our Supreme Court: "An
Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power
store orders (Keokee Coke Co. v. Taylor, 234 U. S. 224); requiring
payment of employees of railroads and other industrial concerns in
legal tender and requiring salaries to be paid semi-monthly (Erie
R. R. Co. v. Williams, 233 U. S., 685); providing a maximum number of hours of labor for women (Miller v. Wilson, 236 U. S. 373, 59
L. Ed. 628, L. R. A. 1915 F, 829, 35 Sup. Ct. Rep. 342); prohibiting
child labor (Sturges & Burn v. Beauchamp, 231 U. S., 320); restricting the hours of labor in public laundries (In re Wong Wing,
167 Cal. 109); limiting hours of labor in industrial establishments
generally (State v. Bunting, 71 Ore., 259); Sunday Closing Laws
(State v. Nichols (Ore., 1915), 151 Pac. 473; People v. Clinck
Packing Co. (N. Y., 1915), 108 N. E., 278; Hiller v. State (Md.,
1914), 92 Atl., 842; State v. Penny, 42 Mont., 118; City of Springfield v. Richter, 257 Ill., 578, 580; State v. Hondros (S. C., 1915), 84
S. E., 781); have all been upheld as a valid exercise of the police
power. Again, workmen's compensation laws have been quite generally upheld. These statutes discard the common law theory that
employers are not liable for industrial accidents and make them
responsible for all accidents resulting from trade risks, it being
considered that such accidents are a legitimate charge against production and that the employer by controlling the prices of his
product may shift the burden to the community. Laws requiring
state banks to join in establishing a depositors' guarantee fund
have also been upheld by the Federal Supreme Court in Noble
State Bank v. Haskell (219 U. S., 104), and Assaria State Bank v.
Dolley (219 U. S., 121). Offensive noises and smells have been for
a long time considered susceptible of suppression in thickly populated
districts. Barring livery stables from such locations was approved
of in Reinman v. Little Rock (U. S. Sup. Ct., Apr. 5, 1915, U. S.
Adv. Ops., p. 511).
8 Eubank v. City of Richmond (1912), 226 U. S. 137, 57 L. Ed.
156; Leisy v. Hardin (1890), 135 U. S. 100, 34 L. Ed. 128; McKeon
v. N. Y. & N. H. R R. Co. (1902), 75 Conn. 343, 61 L. R. A. 736.
855 Mutual Loan Co. v. Martel (1911), 222 U. S. 225, 233, 56 L.
Ed. 175.




542


PHILIPPINE GOVERNMENT


and interferes with the ordinary enjoyment of property
would, without doubt, be held to be invalid. But where
the Act is reasonably within a proper consideration of
and care for the public health, safety, or comfort, it should
not be disturbed by the courts. The courts cannot substitute their own views for what is proper in the premises
for those of the Legislature." 866  Because there exist
few scientifically certain criteria of legislation and because it is difficult to delimit the boundaries of the police
power, judges are slow to pronounce general welfare
statutes invalid.867 "If there is any such power in the
judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that
which the legislature has done comes within the rule
that, if a statute purporting to have been enacted to
protect the public health, the public morals, or the public
safety, has no real or substantial relation to those objects,
or is, beyond all question, a plain, palpable invasion of
rights secured by the fundamental law, it is the duty of
the courts to so adjudge, and thereby give effect to the
Constitution." 858 In the leading case of Lawton v. Steele,
quoted with approval by our Supreme Court, it was said
that "a large discretion is necessarily vested in the legislature to determine, not only what the interests of the
public require, but what measures are ncccssary for the
protection of such interests.  (Barbier v. Connolly, 113
U. S., 27; Kidd v. Pearson, 128 U. S. 1.) To justify the
State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and, second, that the
85e Churchill v. Rafferty (1915), XIV O. G. 383.
857 Noble State Bank v. Haskell (1911), 219 U. S. 104, 55 L. Ed.
112.
858 Jacobson v. Massachusetts (1905), 197 U. S. 11, 49 L. Ed. 643,
followed in Case v. Board of Health (1913), 24 Phil. 250.




BASIC PRINCIPLES


543


means are reasonably necessary for the accomplishment
of the purpose, and not unduly oppressive upon individuals.  The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with
private business, or impose unusual and unnecessary restrictions upon lawful occupations." 8g Arbitrary, unjust, or unreasonable interference with freedom of action
and use of property is not permissible. The general rule
is that police regulations must be reasonable under all
circumstances.
After all "it is much easier to perceive and realize the
existence and sources of this power, than to mark its
boundaries, or prescribe limits to its exercise." e0O Consequently, every case claimed to come under the police
power must be decided on its merits as it arises.   The
validity of a police regulation must depend on the circumstances of the case and the character of the regulation,
whether arbitrary or reasonable, and whether really designed to accomplish a legitimate public purpose.361
~ 131. Various fundamental privileges and immunities protect the individual against the arbitrary use of
the great forces of government just described.    Duties
an(l rights are fairly reciprocal.
Some of these privileges and immunities of the individual are the natural rights of men.    Others are inalienable. All are fundamental.   Some can be classified
as civil rights and others as political rights.  We present a partial list which belongs inherently to the citizens
of all free governments, only stopping to say a word of
those which find no place in the following sections.
859 152 U. S. 133 (1894), quoted in U. S. v. Toribio, 15 Phil. 85, 97,
italics those of court and followed in U. S. v. Villareal (1914), 28
Phil. 390.
860 Commonwealth v. Alger (1851), 7 Cush. 53.
861 Chicago, B. & Q. R. Co. v. Illinois (1906), 200 U. S. 561, 592,
50 L. Ed. 596; Churchill v. Rafferty (1915) XIV 0. G. 383.




544


PHILIPPINE GOVERNMENT


Among the rights are protection by the government; the
enjoyment of life, liberty, and property; the pursuit of
happiness; access to the courts; freedom of labor; freedom of speech; religious freedom; right of personal
security; right to reputation; right to health; right to
vote; right to an education; right to local government;
and right to contract."6 "The right to follow any of
the common occupations of life is an inalienable right." 86
862 See Kalaw, Teorias Constitucionales, Ch. XV; Corfield v. Coryell (1823), 4 Wash. C. C. 371, Fed. Cas. No. 3,230.
863 Butchers Union Slaughterhouse Co. v. Crescent City Livestock
Landing Co. (1884), 111 U. S. 746, 762, 28 L. Ed. 585. "It is undoubtedly the right of every citizen of the United States to follow
any lawful calling, business, or profession he may choose, subject only
to such restrictions as are imposed upon all persons of like age, sex,
and condition. This right may in many respects be considered as a
distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued
as sources of livelihood, some requiring years of study and great
learning for their successful prosecution. The interest, or, as it is
sometimes termed, the 'estate,' acquired in them-that is, the right to
continue their prosecution-is often of great value to the possessors,
and cannot be arbitrarily taken from them, any more than their real
or personal property can be thus taken. But there is no arbitrary
deprivation of such right where its exercise is not permitted because
of a failure to comply with conditions imposed by the state for the
protection of society. The power of the state to provide for the
general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against
the consequences of ignorance and incapacity, as well as of deception
and fraud. As one means to this end it has been the practice of different states, from time immemorial, to ekact in many pursuits a
certain degree of skill and learning upon which the community may
confidently rely; their possession being generally ascertained upon
an examination of parties by competent persons, or inferred from a
certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal." Dent v. West Virginia
(1889), 129 U. S. 114, 121, 32 L. Ed. 623. See U. S. v. Gomez (1915),
XIII O. G. 1628




BASIC PRINCIPLES


545


Liberty of contract relating to labor embraces the right
to sell one's own labor or to make contracts for the
labor of others, subject to the condition that no contract inconsistent with the public interest or hurtful to
the public order or detrimental to the common good, can
be sustained; it includes both parties to it.8" The right to
love and marry is ardently asserted, but may be contracted
only under such reasonable conditions as the legislature
may see fit to impose.85
Only in time of war or great danger could these and
other constitutional immunities of individuals be
suspended.8"
~ 132. Rights of accused in criminal prosecutions.s67
Philippines.                  United States.
"That in all criminal prosecu-  "Nor shall any person be subtions the accused shall enjoy the  ject for the same offence to be
right to a speedy and public trial, twice put in jeopardy of life or
to be informed of the nature and  limb; nor shall be compelled in
s Adair v. U. S. (1908), 208 U. S. 161, 52 L. Ed. 436; Lochner v.
New York (1905), 198 U. S. 45, 49 L. Ed. 937; Bailey v. Alabama
(1911), 219 U. S. 219, 55 L. Ed. 191.
85 "To-day we witness the startling tendency for the States to prescribe whom a person shall not marry, even if it do not prescribe
whom they shall." Stimson, Popular Law-Making, Ch. XVII, p. 327.
"One of these is the right to contract marriage, but it is a right that
can only be exercised under such reasonable conditions as the Legislature may see fit to impose." Gould v. Gould (1905), 78 Conn.
232, 243-245, 265, 266, 267, 61 Atl. 604, 2 L. R. A. (N. S.) 531. The
cases discussing the validity of various legislative restrictions upon
marriage are collected in 2 L. R A. (N. S.) 531-536 (1906).
86 Burgess, Political Science and Constitutional Law, Vol. I, pp.
245 et seq.
867 See generally Cooley's Constitutional Limitations, 7th Ed. pp.
436 et seq; Willoughby on the Constitution, Vol. II, pp. 815 et seq;
Burgess, Political Science and Constitutional Law, Vol. I, pp. 185
et seq; Bishop's New Criminal Procedure, 2d Ed.; 8 R. C. L., pp. 67
et seq.
P. I. Govt.-35.




546


IP)IILIPPINE GOVERNMENT


cause of the accusation, to be
confronted with the witnesses
against him, to have compulsory
process of obtaining witnesses in
his favor, and to have the assistance of counsel for his defense;... that no person shall be
put twice in jeopardy for the
same offense or be compelled in
any criminal case to be a witness
against himself." (President's Instructions to the Philippine Commission.)
"That in all criminal prosecutions the accused shall enjoy the
right to be heard by himself and
counsel, to demand the nature
and cause of the accusation
against him, to have a speedy
and public trial, to meet the witnesses face to face, and to have
compulsory process to compel the
attendance of witnesses in his behalf."  (Philippine Bill, sec. 5,
par. 2.)
"That no person shall be held
to answer for a criminal offense
without due process of law; and
no person for the same offense
shall be twice put in jeopardy of
punishment, nor shall be compelled in any criminal case to be
a witness against himself." (Philippine Bill, sec. 5, par. 3.)
"That all persons shall before
conviction be bailable by sufficient sureties, except for capital
offenses." (Philippine Bill, sec.
5, par. 4.)


any criminal case to be a witness
against himself, nor be deprived
of life, liberty, or property without due process of law."868
(United States Constitution, fifth
amendment, portion.)
"In all criminal prosecutions
the accused shall enjoy the right
to a speedy and public trial.. and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have
compulsory process for obtaining
witnesses in his favor, and to
have the assistance of counsel
for his defence." (United States
Constitution, sixth amendment,
portion.)
(State Constitutions.)


868 The requirement of the fifth amendment that infamous crimes
must be presented by indictment of a grand jury has no application
to the Philippine Islands. Dowdell v. U. S. (1911), 221 U. S. 325,
55 L. Ed. 753 and other cases.




BASIC PRINCIPLES


547


"That in all criminal prosecutions the accused shall enjoy the
right to be heard by himself and
counsel, to demand the nature
and cause of the accusation
against him, to have a speedy and
public trial, to meet the witnesses
face to face, and to have compulsory process to compel the attendance of witnesses in his behalf." (Philippine Autonomy Act,
sec. 3, par. 2.)
"That no person shall be held
to answer for a criminal offense
without due process of law; and
no person for the same offense
shall be twice put in jeopardy of
punishment, nor shall be compelled in any criminal case to be
a witness against himself." (Philippine Autonomy Act, sec. 3,
par. 3.)
"That all persons shall before
conviction be bailable by sufficient sureties, except for capital
offenses." (Philippine Autonomy Act, sec. 3, par. 4.)
General Orders, No. 58, the Code of Criminal Procedure, carries the above constitutional provisions into
effect. The codes also enumerate the rules of evidence.
The principles of Criminal Procedure, Evidence, and
other subjects are studied in the appropriate courses. We
confine ourselves here almost exclusively to constitutional
phases.
Right to hearing.
"In all criminal prosecutions the defendant shall be
entitled:
"To appear and defend in person and by counsel at




548


PHILIPPINE GOVERNMENT


every stage of the proceedings." (Code of Criminal Procedure, sec. 15 (1).)
"If the charge is for a felony (delito), the defendant
must be personally present at the arraignment; but if for
a misdemeanor (falta), he may appear by counsel." (Code
of Criminal Procedure, sec. 16, last sentence.)
In Diaz v. United States 369 it was objected that the accused was wrongfully convicted in that the trial proceeded
in part in his absence. After quoting provisions of the
Code of Criminal Procedure, including section 15, paragraph 1, appearing above, the United States Supreme
Court by Mr. Justice Van Devanter said "that the effect
of these sections, when their differing terms are considered, is to make the presence of the accused indispensable
at the arraignment, at the time the plea is taken, if it be
one of guilt, and when judgment is pronounced, and to
entitle him to be present at all other stages of the proceedings, but not to make his presence thereat indispensable."
(p. 454.) Then passing on to consider the constitutional
provisions securing to the accused in all criminal prosecutions "the right to be heard by himself and counsel,"
the court, citing many cases including Barton v. State, 67
Ga. 653, 44 Am. Rep. 743, and Falk v. United States,
180 U. S. 636, 45 L. Ed. 709, said: "In cases of felony
our courts, with substantial accord, have regarded it (the
right to be present) as extending to every stage of the
trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important
to the accused than the right of trial itself. And with like
accord they have regarded an accused who is in custody
and one who is charged with a capital offense as incapable
of waiving the right; the one, because his presence or
absence is not within his own control; and the other, because, in addition to being usually in custody, he is


89 223 U. S. 442, 56 L. Ed. 500 (1912).




BASIC PRINCIPLES


549


deemed to suffer the constraint naturally incident to an
apprehension of the awful penalty that would follow conviction. But, where the offense is not capital and the
accused is not in custody, the prevailing rule has been
that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has
been done or prevent the completion of the trial, but, on
the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in
like manner and with like effect as if he were present."
(p. 455.) Consequently, in this particular case, there being no infringement of the rights of the accused, it was
held that: 1. The voluntary absence of the accused when
his presence is not made indispensable by the court,
coupled with an express consent that the trial go on in
the presence of his counsel, is a waiver of his right to be
present at every stage of the trial; and 2. One accused
of an offense not capital, who is not in custody, and who
was present when the trial was begun, may waive his
right under the Philippine Organic Law to be personally
present at every stage of the trial.
It is much safer to stop here than to attempt to reconcile prior Philippine decisions (although the author believes this can be done) with the views of the United
States Supreme Court.370 A later Philippine case, United
870 Compare with U. S. v. Karelsen (1904), 3 Phil. 223 holding:
"The requirement of the law that the accused be present personally
at the time of pronouncing judgment if convicted of a felony is mandatory, and in case of a failure to comply therewith the sentence will
be reversed, without disturbing the verdict, and the cause remanded
with instructions to the court below to pronounce judgment in
accordance with the provisions of the statute;" with U. S. v. Palisoc
(1905), 4 Phil. 207, holding: "A sentence convicting a defendant for
felony will be reversed where it is shown that sections 16, 17, and 18;
of General Orders, No. 58, have not been complied with;" and with
U. S. v. Baluyot (1905), 5 Phil. 129, 133, in which Mr. Justice Willard asks: "If the legislature of a State whose constitution con



550


PHILIPPINE GOVERNMENT


States v. Beechem, was of the opinion that, upon the
authority and reasoning of various courts of last resort
in the United States, construing similarly worded constitutional and statutory provisions touching the rights
of the accused personally to be present in the course of
criminal proceedings instituted against them, "there can
be no question that the language of the Philippine Bill
of rights in which it secures to the accused the right
to be heard by himself and counsel in all criminal prosecutions, and the language of General Orders, No. 58,
which secures to the accused the right 'at the trial' to be
present in person and by counsel at every stage of the
proceedings, and specifically 'at the time of pronouncing
judgment,' must be understood to be limited to the proceedings in the trial court, that is to say the Court of
First Instance, and to extend only to the actual trial
therein, and not to appellate proceedings or to proceedings subsequent to the entry of final judgment looking
merely to the execution of the sentence." 371
Some of the tests, therefore, are whether the proceedings are in the trial court or the appellate court, whether
a right indispensable or not to the accused, whether a
felony or a misdemeanor, and whether a capital offense
tained provisions similar to those contained in said section 5, should
pass a law saying distinctly that the prisoner in a case of felony
should not be entitled to be present upon the hearing of a demurrer
or a motion for a new trial, or when the verdict of the jury was pronounced, or when the penalty was declared by the judge, would such
legislation be constitutional?" His answer was: "The right of the
prisoner to be present at any one of these stages is not in terms
secured by any one of the provisions contained in said section 5, and
the right to be so present does not seem to be an essential ingredient
of that due process of law which is guaranteed by said constitutional
and statutory provisions." The decision in the last case was that
Act 867 in providing that a judge need not be present when the judgment is pronounced is valid.
87123 Phil. 258, 274 (1912).




BASIC PRINCIPLES


551


where the accused can not waive the right or not capital
where it can be.
Nature and cause of accusation.
"In all criminal prosecutions the defendant shall be
entitled:
"To be informed of the nature and cause of the accusation." (Code of Criminal Procedure, sec. 15, (2).)
The Code of Criminal Procedure elaborates on the constitutional provision. Public offenses must be prosecuted
by complaint or information (sec. 3). The sufficiency
of a complaint or information is provided for (sec. 6),
but is not insufficient by reason of a defect in matter of
form "which does not tend to prejudice a substantial
right of the defendant upon the merits" (sec. 10). The
defendant must be arraigned (sec. 16).   These and
other sections of the Code have been often construed by
the Philippine courts. Invariably they have held that a
complaint is not defective when the charge is so stated
as to enable a person of common understanding to know
what is intended.87  In Paraiso v. United States 878 the
United States Supreme Court held that a complaint sufficiently clear to the mind of a person of rudimentary intelligence as to what the defendant is charged with, informs the accused of the nature and cause of the accusation against him, and a conviction thereunder is not in
that respect without due process of law under the Philippine Bill of Rights. In the course of the opinion, Mr.
Justice Holmes made this pertinent remark: "The bill
of rights for the Philippines giving the accused the right
to demand the nature and cause of the accusation against
him does not fasten forever upon those Islands the in872 See for example U. S. v. Sarabia (1905), 4 Phil. 566.
878207 U. S. 368, 52 L. Ed. 249, 11 Phil. 799 (1907).




552


PHILIPPINE GOVERNMENT


ability of the seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired
with a desire to pervert."
Speedy and public trial.
"In all criminal prosecutions the defendant shall be
entitled:
"To have a speedy and public trial." (Code of Criminal procedure, sec. 15 (7).)
A speedy trial is one conducted according to fixed proceedings of law, free from vexatious, capricious, and oppressive delays.374 Unreasonable delays in the trial of
accused persons can not be tolerated. But impossibilities
are not to be exacted. Certain postponements made necessary by the ordinary procedure are permissible.
As to the nature of a speedy trial, we can do no better
than to quote from an opinion of the Supreme Court of
Montana releasing a person on habeas corpus, because of
a denial of his constitutional right to a speedy trial,
namely:
"Among the principles that adorn the common law,
making it the pride of all English speaking people, and
a lasting monument to the achievements of liberty over
the encroachments of arbitrary power, are the following:
No man can be rightfully imprisoned except upon a
charge of crime properly made in pursuance of the law of
the land. No man, when so imprisoned upon a lawful
charge presented in a lawful manner, specifying the crime
can be arbitrarily held without trial.
"These principles are in accord with the enlightened
spirit of the common law, and form a part of the frame
work of the English constitution. They are guaranteed


874 See 8 R  C. L. pp. 70-75.
a




BASIC PRINCIPLES


553


and secured by Magna Charta, the petition of rights, the
Bill of Rights and by a long course of judicial decisions,
and they belong to us as a part of inheritance from the
mother country. These rights were claimed by our ancestors in Colonial times, and they have been engrafted
into and secured by our constitution the supreme law of
the land.
"The speedy trial, to which a person charged with a
crime is entitled under the constitution, is then, a trial
at such time, after the finding of indictment, regard being
had to the terms of court, as shall afford the prosecution
a reasonable opportunity, by the fair and honest exercise
of reasonable diligence, to prepare for trial; and if the
trial is postponed or delayed beyond such period, when
there is a term of court at which the trial might be had
by reason of the neglect or laches of the prosecution in
preparing for trial, such a delay is a denial to the defendant of his right to a speedy trial.
"The prosecution was guilty of laches and a neglect of
duty, in so failing and refusing to prosecute, and such
failure was a denial to the defendant of his constitutional
right to a speedy trial. The government of the United
States cannot cast a man into prison and then fold its arms
and refuse to prosecute.
"And it is not material to inquire for what reason the
government failed and refused to prosecute these indictments, or why appropriations of money to enable marshals
to serve process failed in Congress. The fact is sufficient
for the purposes of this case.
"The prayer for the petition is granted and the petitioner discharged from custody and imprisonment." 875
A public trial is guaranteed in order to see fair play
done the accused, and in order to keep his judges alive to
s7sU. S. v. Fox (1880), 3 Mont. 512. See also Arrowsmith v.
State (Tenn.), 175 S. W. 345.




554


PHILIPPINE GOVERNMENT


their responsibilities.876 Secret trials can, therefore, under ordinary circumstances, not be authorized. But the
right to a public trial is not denied when the judge, in his
discretion, refuses admission to certain of the public who
attend merely out of "purient curiosity," or excludes all
spectators because of the nature of the case, as on account
of a regard for public morals and public decency.877
Meeting witnesses face to face.878
"In all criminal prosecutions the defendant shall be
entitled:
"To be confronted at the trial by and to cross-examine
the witnesses against him. Where the testimony of a
witness for the prosecution has previously been taken
down by question and answer in the presence of the accused or his counsel, the defence having had an opportunity to cross-examine the witness, the deposition of the
latter may be read, upon satisfactory proof to the court
that he is dead or insane, or cannot with due diligence be
found in the Islands." (Code of Criminal Procedure, sec.
15 (5).)
This provision of the Philippine Bill, Mr. Justice Day
said in Dowdell v. United States, "intends to secure the
accused in the right to be tried, so far as facts provable
by witnesses are concerned, by only such witnesses as meet
him face to face at the trial, who give their testimony
in his presence, and give to the accused an opportunity of
cross-examination. It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exer876 8 R. C. L. pp. 75-77.
a7 Cooley's Constitutional Limitations, 7th Ed., p. 441.
878 See generally Wigmore on Evidence, Vol. II, Ch. XLV.




BAsIc PRINCIPLES


555


cise of the right of cross-examination. Mattox v. United
States, 156 U. S. 237, 242, 39 L. Ed. 409, 410, 15 Sup.
Ct. Rep. 337; Kirby v. United States, 174 U. S. 47, 55,
43 L. Ed. 890, 893, 19 Sup. Ct. Rep. 574, 11 Am. Crim.
Rep. 330; 2 Wigmore, Ev. pars. 1396, 1397." 79 A second and minor purpose, as given by Greenleaf on Evidence, quoted with approval by the Supreme Court of the
Philippines, is that a tribunal may have before it the deportment and appearance of a witness while testifying.880
The Supreme Court of the Philippines applied the main
rule by acquitting a defendant, because, in the language
of Mr. Justice Mapa, "one of the essential rights of every
person charged in a criminal case is that of being present
at the trial, hearing the testimony of the witnesses for
the prosecution, and cross-examining them (sec. 15, par.
5, General Orders, No.. 58), and this right would evidently be violated if the evidence taken in another case,
to which he was not a party and in which he has not been
heard, were to be considered to his detriment in this
<ase." 881 Tlie Attorney-General and the Supreme Court
of the Philippines have many times mentioned the last
subsidiary principle concerning the weight to be given
the findings of the trial court, because of the fact that
it has the opportunity of viewing the witnesses while testifying, in considering cases on appeal where only the
record is before them, and the personal equation is lacking.
The constitutional provision did not purport to enumerate all the limitations to the rule. A number of these
limitations existed at the time of the adoption of the
United States Constitution. The Constitution merely endorsed the general principle of the hearsay rule subject
879221 U. S. 325, 330, 55 L. Ed. 753 (1911).
880Greenleaf on Evidence, Vol. I, par. 163, quoted in U. S. v.
Anastasio (1906), 6 Phil. 413, 416.
881 U. S. v. Bello (1908) 11 Phil. 526, 527.




556


PHILIPPINE GOVERNMENT


to these exceptions.882 In the Dowdell case Mr. Justice
Day continued his opinion as follows: "But this general
rule of law embodied in the Constitution, and carried by
statute to the Philippines, and intended to secure the right
of the accused to meet the witnesses face to face, and
to thus sift the testimony produced against him has always
had certain well-recognized exceptions. As examples are
cases where the notes of testimony of a deceased witness,
of which the accused has had the right of cross-examination in a former trial, have been admitted. Dying declarations, although not made in the presence of the accused, are uniformly recognized as competent testimony.
882 See Greenleaf on Evidence, 16th Ed. Vol. I, par. 163, quoted in
U. S. v. Gil (1909), 13 Phil. 530, 548, 549, holding: "The American
authors of the Philippine Bill and of General Orders, No. 58, must
be presumed to have borrowed the provisions of the Constitution of
the United States, securing to accused persons the right of confrontation and cross-examination of the witnesses against them, subject to
the well-established exceptions which have always been recognized
under the rule as laid down by the Constitution of the United States;
these provisions were never intended to render inadmissible dying
declarations in criminal cases, touching the circumstances leading up
to the death for which the prosecution is instituted."
"Section 15 of General Orders, No. 58, provides that in all criminal prosecutions the defendant shall be entitled to be confronted by,
and to cross-examine the witnesses against him; and while there are
some apparent exceptions to this rule in regard to hearsay testimony,
the dying declaration under consideration can not be said to fall
under any of these so-called exceptions.
"Dying declarations or affirmations, made not under the sanction of
an oath but of a solemn sense of impending death, are sometimes
accepted as evidence, though made extra-judicially and without
cross-examination, the declarant not being regarded as a witness
whom the defendant is entitled to meet face to face; but the admission of such declarations has always been strictly limited to criminal
prosecutions for homicide or murder, and must proceed from the
very person alleged to have been killed. (Thompson v. State, 24 Ga.
297; Gibson v. Whiteworth, 1 Fost. & F., 382.) Manifestly, therefore, the ante-mortem statement in this case is not admissible as a
dying declaration." U. S. v. De la Cruz (1908), 12 Phil. 87, 91.




BASIC PRINCIPLES


557


Mattox v. United States, supra. Documentary evidence
to establish collateral facts admissible under the common
law, may be admitted in evidence. Cooley, Const. Lim.
2d ed. 450, note; People v. Jones, 24 Mich. 224." Consequently, "where a court, upon suggestion of the diminution of the record, orders a clerk of the court below to
send up a more ample record, or to supply deficiencies in
the record filed, there is no production of testimony
against the accused, within the meaning of this provision
as to meeting witnesses face to face, in permitting the
clerk to certify the additional matter." Always also there
may exist no other method of utilizing a witness' knowledge than by resorting to depositions and former testimony.888 "The net result...  under the constitutional rule," Dean Wigmore states, "is that, so far as
testimony is required under the Hearsay rule to be taken
infra-judicially, it shall be taken in a certain way, namely,
subject to cross-examination,-not secretly or ex parte
away from the accused. The Constitution does not prescribe what kinds of testimony statements (dying declarations, or the like) shall be given infra-judicially-this
depends on the law of evidence for the time being-, but
only what mode of procedure shall be followed-i. e. a
cross-examining procedure-in the case of such testimony
as is required by the ordinary law of evidence to be given
infra-judicially." M'
The right to be confronted with the witnesses in criminal prosecutions as guaranteed by the Philippine Bill of
Rights is a personal one and may be waived.88 In Diaz
v. United States 886 it was objected that the accused was
deprived of the right secured to him "to meet the witnesses
388 Wigmore on Evidence, Vol. II, secs. 1401 et seq.
884 Wigmore on Evidence, Vol. II, p. 1755.
885 U. S. v. Anastasio (1906), 6 Phil. 413.
886 223 U. S. 442, 56 L. Ed. 500 (1912), citing many cases, including People v. Murray (1883), 52 Mich. 288, 17 N. W. 843. See also




558


PHILIPPINE GOVERNMENT


face to face" in that the judgment of conviction for homicide was rested in part upon the testimony produced before the justice of the peace at the trial for assault and
battery, and at the preliminary investigation. But the
court overruled the point, the record having been offered
by the accused without qualification or restriction. The
Court said: "The right of confrontation secured by the
Philippine Civil Government act is in the nature of a privilege extended to the accused, rather than a restriction
upon him (State v. McNeil, 33 La. Ann. 1332, 1335). He
is free to assert it or to waive it, as to him may seem
advantageous."
Attendance of witnesses.887
"In all criminal prosecutions the defendant shall be
entitled:
*        *        *        *         *        *        *
"To have compulsory process issue for obtaining witnesses in his own favor." (Code of Criminal Procedure,
sec. 15 (6).)
Chapter XVI of the Code of Civil Procedure provides
for subpoenas and the compelling of the attendance of
witnesses, both for the benefit of the prosecution and the
defense.
Due process of law.
This subject we will discuss in section 140. It is, however, most important as a protection to accused in criminal cases.888 Due process in fact becomes part and parcel
to same effect U. S. v. Anastasio (1906), 6 Phil. 413, and U. S. v.
Raymundo (1909), 14 Phil. 460.
887 See Cooley's Constitutional Limitations, 7th Ed., pp. 474, 475;
8 R. C. L. pp. 81, 82.
888 See for example Dowell v. U. S. (1911), 221 U. S. 325, 55 L. Ed.
753 holding: Due process of law was not denied by the action of the




BASIC PRINCIPLES


559


of all guaranties in favor of defendants held to answer for
criminal offenses.
"The requirement that no person shall be held to
answer for a criminal offense without 'due process of
law,' " said Mr. Justice Johnson in United States v.
Ocampo, "simply requires that the procedure established
by law shall be followed. If that procedure fully protects the life, liberty, and property of the citizens in the
State, then it will be held to be 'due process of law.' "m
A little later in United States v. Grant, Mr. Justice Trent
said: "The phrase 'due process of law,' used in the Philippine Bill, should receive a comprehensive interpretation,
and no procedure should be treated as unconstitutional
which makes due provision for the trial of the criminal
before a court of competent jurisdiction, for bringing the
party against whom the proceeding is had into court, and
notifying him of the case he is required to meet, for giving him an opportunity to be heard in his defense; for
the deliberation and judgment of the court, and for an
appeal from that judgment to the highest tribunal of the
State for hearing and judgment there." 390 Both of these
cases decided a point which can as well be considered here
as anywhere else, namely, with reference to the constitutionality of Act 612, section 2, providing that: "In cases
triable only in the Court of First Instance in the city of
Supreme Court of the Philippine Islands in making an order upon
its own motion when the accused were absent from the court, requiring the judge and clerk of the court below to supply deficiencies
in the record; and In re Montagne (1904) 3 Phil. 577 holding: "A
proceeding for the disbarment of an attorney is one within the jurisdiction of the court of which he is an attorney, and is not an invasion
of the provisions of the Philippine bill that no one shall be prosecuted for a criminal offense except by due process of law; the proceeding is not criminal, and is itself due process of law."
889 18 Phil. 1, 41 (1910), italics those of court, affirmed on appeal
to the United States Supreme Court.
~0 18 Phil. 122, 154 (1910).




560


PHILIPPINE GOVERNMENT


Manila, the defendant shall have a speedy trial, but shall
not be entitled as of right to a preliminary examination
in any case where the prosecuting attorney (of the city
of Manila) after due investigation of the facts, under
section 39 of the Act of which this is an amendment (No.
183, the Charter of the city of Manila), shall have presented an information against him in proper form."
These decisions as well as the previous ones of United
States v. Wilson (1905) 4 Phil. 317; United States v.
McGovern (1906) 6 Phil. 621; and United States v.
Raymundo (1909) 14 Phil. 416, are uniform in holding
-Act 612, section 2, is valid; defendants in criminal
actions in the city of Manila are not entitled as of right
to a preliminary investigation by the Court of First Instance; and a preliminary investigation by the Prosecuting Attorney of the city of Manila constitutes due process
of law-to use the words of the Chief Justice in United
States v. McGovern "due process of law has not been
lacking." The United States Supreme Court affirmed
these conclusions on appeal in the Ocampo case.89' But
necessarily an accused who is deprived of his liberty, tried,
and sentenced without the proper preliminary investigation having been made, is convicted without due process
of law.88
Double jeopardy.
"When a defendant shall have been convicted or acquitted or once placed in jeopardy upon an information or
complaint, the conviction, acquittal or jeopardy shall be
a bar to another information or indictment for the offense charged, or for an attempt to commit the same, or
for a frustration thereof, or for any offense necessarily
therein included of which he might have been convicted
1 Ocampo v. U. S. (1914), 234 U. S. 91, 58 L. Ed. 1231.
8aU. S. v. Banzuela (1915), XIV 0. G. 159.




BASIC PRINCIPLES


561


under such complaint or information." (Code of Criminal Procedure, sec. 26.)
"If the defendant shall have been formerly acquitted
on the ground of variance between the complaint or information and the proof, or if the complaint or information shall have been dismissed upon objection to its form
or substance or in order to hold the defendant for a higher
offense without a judgment of acquittal, it shall not be
considered an acquittal of the same offense." (Code of
Criminal Procedure, sec. 27.)
"A person cannot be tried for an offense, nor for any
attempt to commit the same or frustration thereof, for
which he has been previously brought to trial in a court
of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, after issue properly
joined, when the case is dismissed or otherwise terminated
before judgment without the consent of the accused."
(Code of Criminal Procedure, sec. 28.)
The Philippines have furnished the leading cases on
this subject.8
Kepner v. United States 8 was the first. Kepner
charged with embezzlement was acquitted in the Court
of First Instance. Upon appellate proceedings, as permitted by the Code, by the government to the Supreme
M8 See Hall's Cases on Constitutional Law, p. 198, note.
I" 195 U. S. 100, 11 Phil. 669 (1904) following other decisions of
the United States Supreme Court. The Kepner case is thus described in Trono v. U. S. infra: "The plaintiff in error in that case
had been acquitted of the crime charged against him in the Court of
First Instance, but the Government, not being satisfied with the decision, appealed to the Supreme Court, and that court reversed the
judgment of acquittal and found Kepner guilty of the crime of which
the Court of First Instance had acquitted him, and sentenced him to
a term of imprisonment, and suspended him from any public office
or public trust, and deprived him of the right of suffrage. This
court, upon writ of error, held that, in reversing upon the appeal of
P. I. Govt.-36.




562


PHILIPPINE GOVERNMENT


Court, the judgment was reversed and Kepner found
guilty. Error was assigned upon the ground that the
accused had been put in jeopardy a second time by the
appellate proceedings. The United States Supreme Court
recognized that statutes giving the Government a right
to review upon the steps merely preliminary to a trial before the accused is legally put in jeopardy have been quite
generally sustained by the courts. So the Government
can appeal from a decision of an inferior court sustaining
a demurrer.895 On the main point of jeopardy we quote
portions of the opinion of Mr. Justice Day, as follows:
"It is true that some of the definitions given by the textbook writers, and found in the reports, limit jeopardy to
a second prosecution after verdict by a jury; but the
weight of authority, as well as decisions of this court,
have sanctioned the rule that a person has been in jeopardy when he is regularly charged with a crime before a
tribunal properly organized and competent to try him,
certainly so after acquittal. (Coleman v. Tennessee, 97
U.. 509.)
"It is, then, the settled law of this court that former
jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on
the verdict, and it was found upon a defective indictment. The protection is not, as the court below held,
against the peril of second punishment, but against being
again tried for the same offense.
the Government, the judgment of the Court of First Instance, and
itself convicting the accused and pronouncing judgment against him,
the Supreme Court of the Islands violated the provisions in question,
and its judgment was therefore reversed and the prisoner discharged.
It was also held that the Government had no power to obtain a
review of a judgment or decision of the trial court acquitting an
accused party."
95 U. S. v. Ballantine (1905), 4 Phil. 672, 680; People v. Webb
(1869), 38 Cal. 467.




BASIC PRINCIPLES


563


"The Ball case (163 U. S. supra), establishes that to
try a man after a verdict of acquittal is to put him twice
in jeopardy, although the verdict was not followed by
judgment. That is practically the case under consideration, viewed in the most favorable aspect for the Government. The Court of First Instance, having jurisdiction to try the question of the guilt or innocence of the
accused, found Kepner not guilty; to try him again upon
the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense, if Congress
used the terms as construed by this court in passing upon
their meaning. We have no doubt that Congress must
be held to have intended to have used these words in the
well-settled sense as declared and settled by the dicisions
of this court.
"It follows that Military Order No. 58, as amended by
act of the Philippine Commission, No. 194, in so far as it
undertakes to permit an appeal by the Government after
acquittal, was repealed by the act of Congress of July,
1902, providing immunity from second jeopardy for the
same criminal offense."
Trono v. United States 896 was the second. Plaintiffs
in error were tried for murder in the Court of First Instance. They were convicted of the crime of assault and
sentenced to six months' imprisonment and a fine. They
appealed to the Supreme Court of the Philippine Islands
which reversed the judgment and found them guilty of
homicide and sentenced them to various terms from eight
to fourteen years' imprisonment and a fine.  A writ of
error sought a review of the judgment on the ground
that the action of the Supreme Court of the Philippine
Islands in increasing sentence amounted to putting the
896199 U. S. 521, 11 Phil. 726 (1905), explaining Hopt v. Utah
(1884), 110 U. S. 574, 28 L. Ed. 262. Followed in Flemister v. U. S.,
(1907), 207 U. S. 372, 52 L. Ed. 252; Ocampo v. U. S. (1914), 234
U. S. 91, 58 L. Ed. 1231.




564


PHILIPPINE GOVERNMENT


accused in second jeopardy. The United States Supreme
Court, speaking through Mr. Justice Peckham, noted an
obvious difference between the Kepner case and the present one. "The difference is vital between an attempt by
the Government to review the verdict or decision of acquittal in the Court of First Instance and the action of
the accused person in himself appealing from the judgment and asking for its reversal, even though that judgment, while convicting him of the lower offense, acquits
him of the higher one charged in the complaint." The
court then said: "In our opinion the better doctrine is
that which does not limit the court or jury, upon a new
trial, to a consideration of the question of guilt of the
lower offense of which the accused was convicted on the
first trial, but that the reversal of the judgment of conviction opens up the whole controversy and acts upon
the original judgment as if it had never been. The accused by his own action has obtained a reversal of the
whole judgment, and we see no reason why he should
not, upon a new trial, be proceeded against as if no trial
had previously taken place. We do not agree to the
view that the accused has the right to limit his waiver as
to jeopardy, when he appeals from a judgment against
him. As the judgment stands before he appeals, it is a
complete bar to any further prosecution for the offense
set forth in the indictment, or of any lesser degree
thereof. No power can wrest from him the right to so
use that judgment, but if he chooses to appeal from it
and to ask for its reversal he thereby waives, if successful, his right to avail himself of the former acquittal of
the greater offense, contained in the judgment which he
has himself procured to be reversed."
Grafton v. United States 397 was the third. Grafton,
97 206 U. S. 333, 11 Phil. 776 (1907). See also U. S. v. Gimenez
(1916) XIV O. G. 722.




BASIC PRINCIPLES


565


a private in the Army of the United States, was tried before a general court-martial for murder. He was found
not guilty of the charge. Notwithstanding, the provincial
fiscal of Iloilo filed a criminal information in the name of
the United States in the Court of First Instance of that
province charging Grafton with the crime of assassination. The trial resulted in a judgment declaring Grafton
guilty of homicide. The case was carried to the Supreme
Court of the Philippines where judgment was affirmed.
The principal contention of the accused before the United
States Supreme Court was that his acquittal by the courtmartial forbade his again being tried in the civil court
for the same offence. The court, by Mr. Justice Harlan,
said:
"We assume as indisputable, on principle and authority,
that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted
or convicted must have had jurisdiction to try him for the
offence charged. It is alike indisputable that if a courtmartial has jurisdiction to try an officer or soldier for a
crime, its judgment will be accorded the finality and conclusiveness as to the issues involved which attend the
judgments of a civil court in a case of which it may
legally take cognizance.
"It thus appears to be settled that the civil tribunals
cannot disregard the judgments of a general court-martial
against an accused officer or soldier, if such court had
jurisdiction to try the offense set forth in the charge and
specifications; this, notwithstanding the civil court, if it
had first taken hold of the case, might have tried the accused for the same offense or even one of higher grade
arising out of the same facts..
"It must, then, be taken on the present record that an
affirmance of the judgment of the civil court will subject
the accused to punishment for the same acts, constituting
the same offense as that of which he had been previously




566


PHILIPPINE GOVERNMENT


acquitted by a military court having complete jurisdiction
to try and punish him for such offense..
"We rest our decision of this question upon the broad
ground that the same acts constituting a crime against
the United States can not, after the acquittal or conviction of the accused in a court of competent jurisdiction,
be made the basis of a second trial of the accused for that
crime in the same or in another court, civil or military, of
the same government. Congress has chosen, in its discretion, to confer upon general courts-martial authority to
try an officer or soldier for any crime, not capital committed by him in the territory in which he is serving.
When that was done the judgment of such military court
was placed upon the same level as the judgments of other
tribunals when the inquiry arises whether an accused was,
in virtue of that judgment, put in jeopardy of life or limb.
Any possible conflict in these matters, between civil and
military courts, can be obviated either by withholding
from courts-martial all authority to try officers or soldiers
for crimes prescribed by the civil power, leaving the civil
tribunals to try such offenses, or by investing courtsmartial with exclusive jurisdiction to try such officers and
soldiers for all crimes, not capital.
"We adjudge that, consistently with the above act of
1902 and for the reasons stated, the plaintiff in error, a
soldier in the army, having been acquitted of the crime
of homicide, alleged to have been committed by him in the
Philippines, by a military court of competent jurisdiction,
proceeding under the authority of the United States, could
not be subsequently tried for the same offense in a civil
court exercising authority in that territory."
Gavieres v. United States,898 although to a lesser extent, was the fourth. The judgment in this case was that


98 220 U. S. 338, 342, 55 L. Ed. 489 (1911). See also Burton v.
U. S. (1906) 202 U. S. 344, 50 L. Ed. 1057.




BASIC PRINCIPLES


567


the offenses of behaving in an indecent manner in a public place open to public view, punishable under the municipal ordinance, and of insulting a public officer by deed
or word in his presence, contrary to the Penal Code, are
not identical, so that a conviction of the first will bar a
prosecution for the other, although the acts and words of
the accused set forth in both charges are the same. "The
protection intended and specifically given is against second jeopardy for the same offense."  The court then
quotes approvingly from Morey v. Commonwealth, 108
Mass. 433, in which Judge Gray held: "A conviction or
acquittal upon one indictment is no bar to a subsequent
conviction and sentence upon another, unless the evidence
required to support a conviction upon one of them would
have been sufficient to warrant a conviction upon the
other. The test is not whether the defendant has already
been tried for the same act, but whether he has been put
in jeopardy for the same offense. A single act may be an
offense against two statutes; and if each statute requires
proof of an additional fact which the other does not, an
acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."
Built upon or around these fundamental decisions are
a number of others. Flemister v. United States 8" held
that an accused is not placed twice in jeopardy for the
same offense within the meaning of the Philippine Bill,
because the Supreme Court of the Philippine Islands,
upon reversing judgment below in a criminal case, on an
appeal taken by the accused, convicted him, on the same
facts, of a different offense, carrying an increased sentence. The court further held that treating as two different offenses, assaults on two different individuals does not
place the accused twice in jeopardy for the same offense,


S9 207 U. S. 372, 52 L. Ed. 252 (1907).




568


PHILIPPINE GOVERNMENT


even if these assaults occurred very near each other, in
one continuing attempt to defy the law. Diaz v. United
States 400 held that the prosecution for homicide of a person previously convicted of an assault and battery from
which the death afterwards ensued does not place the accused twice in jeopardy for the same offense, especially
where the jurisdiction of the justice of the peace before
whom the assault and battery charged was tried did not
extend to homicide cases.
"An act may be a penal offense under the laws of the
State, and other penalties under proper authority may be
imposed for its commission by municipal ordinance, and
the enforcement of one penalty would not preclude the
enforcement of the other by such municipality." 401 The
same acts may violate two or more provisions of the
criminal law. When they do, a prosecution under one
will not bar prosecution under another provision of the
penal law.402 However, "that portion of the Philippine
Bill embodying the principle that no person shall be twice
put in jeopardy of punishment for the same offense
should, in accordance with its letter and spirit, be made
to cover as nearly as possible every result which flows
from a single criminal act impelled by a single criminal
intent." E. g. the possession of two firearms under the
conceded facts of this case constituted but one criminal
act, one volition.8
Under the laws of the Philippine Islands, a defendant
is not placed in legal jeopardy until he has been placed
on trial under the following conditions: 1. Upon a good
00 223 U. S. 442, 56 L. Ed. 500 (1912).
ol U. S. v. Chan Cun Chay (1905) 5 Phil. 385, 389. See to same
effect U. S. v. Joson (1913) 26 Phil. 1, citing many authorities; IV
Op. Atty. Gen. P. I. 721, and McInerney v. City of Denver (1892)
17 Col. 302, 29 Pac. 516.
o2 U. S. v. Capurro (1906) 7 Phil. 24.
03 U. S. v. Gustillo (1911) 19 Phil. 208, 212, 213.




BASIC PRINCIPLES


569


complaint; 2. before a competent court; 3. after the
defendant has been arraigned; 4. after the defendant has
plead to the complaint; 5. after the investigation of the
charges has actually commenced by calling up of a witness. 4   "A conviction or an acquittal before a court having no jurisdiction, is, of course, like all the proceedings
in the case, absolutely void, and, therefore, no bar to subsequent indictment and trial in a court which has jurisdiction of the offense." "40 And the prosecution of a defendant by virtue of a new complaint, after the dismissal
of a former complaint before he was arraigned and had
pleaded to the charge, does not constitute twice in
jeopardy.4
Witness against himself.'
"In all criminal prosecutions the defendant shall be entitled:
*       *      *       *      *      *. *
"To testify as a witness in his own behalf; but if a defendant offers himself as a witness he may be cross-examined as any other witness. His neglect or refusal to
be a witness shall not in any manner prejudice or be used
against him." (Code of Criminal Procedure, sec. 15
(3).)
"To be exempt from testifying against himself."
(Code of Criminal Procedure, sec. 15 (4).)
"Under the system of Criminal Procedure existing here
under the Spanish government," according to Mr. Justice
McDonough (although a jurist well-informed on the
Civil Law, Mr. Justice Mapa, in a dissenting opinion in
44 U. S. v. Ballantine (1905) 4 Phil. 672, followed in U. S. v.
Montiel (1907) 7 Phil. 272 and other cases.
406 U. S. v. Jayme (1913) 24 Phil. 90, 93; U. S. v. Rubin (1914)
28 Phil. 631.
406 U. S. v. Solis (1906) 6 Phil. 676.
47 See generally Wigmore on Evidence, Vol. IV, Ch. LXXVIII.




570


PHILIPPINE GOVERNMENT


the same case found otherwise), "it was doubtless lawful
to require a suspected or accused person to give evidence
touching the crime of which he was charged or suspected." 408 The court then proceeds to explain the provision as follows:
"The provision that no one is bound to criminate himself is older than the government of the United States.
At an early day it became a part of the common law of
England.
"It was established on the grounds of public policy and
humanity-of policy, because if the party were required
to testify, it would place the witness under the strongest
temptation to commit the crime of perjury, and of humanity, because it would prevent the extorting of confessions
by duress.
"It had its origin in a protest against the inquisitorial
methods of interrogating the accused person, which had
long obtained in the continental system. (Jones's Law of
Evidence, sec. 887; Black's Constitutional Law, 575.)
"In other words, the very object of adopting this provision of law was to wipe out such practices as formerly
prevailed in these Islands of requiring accused persons to
submit to judicial examinations, and to give testimony regarding the offenses with which they were charged."
(p. 152.)
The United States Supreme Court gives the following
brief history of the provision: "The exemption from
testimonial compulsion, that is, from disclosure as a witness of evidence against oneself, forced by any form of
legal process, is universal in American law, though there
may be differences as to its exact scope and limits. At
the time of the formation of the Union the principle that
no person could be compelled to be a witness against himself had become embodied in the common law and dis

O$ U. S. v. Navarro (1904) 3 Phil. 143, 148, 152.




BA;SIC PRINCIPLES


571


tinguisled it from all other systems of jurisprudence. It
was generally regarded then, as now, as a privilege of
great value, a protection to the innocent, though a shelter
to the guilty, and a safeguard against lIeedless, unfounded, or tyrannical prosecutions." '9 That the court
is, however, not a very enthusiastic defender of the exemption is seen from the following in the same case, relative to the policy of the privilege: "Salutary as the principle may seem to the great majority, it cannot be ranked
with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws,
and the inviolability of private property. The wisdom of
the exemption has never been universally assented to since
the days of Bentham, many doubt it to-day, and it is best
defended not as an unchangeable principle of universal
justice, but as a law proved by experience to be expedient." Dean Wigmore, after giving the history and policy of the privilege in much more detail than above, states
of the constitutional provisions:
"The Federal Constitution and the Constitutions of the
various States (with two exceptions), have at one time
or another come to add their sanctions to the principle of
the privilege, and have thus established it solidly beyond
the reach of ordinary legislative alteration.  But this
constitutional sanction, being merely a recognition and
not a new creation, has not altered the tenor and scope
of the privilege; it has merely given greater permanence
to the traditional rule as handed down to us.  The
framers of the Constitutions did not intend to codify the
various details of the rule, or to alter in any respect its
known bearings, but merely to describe it sufficiently for
identification as a principle.
"The detailed rules are to be determined by the logical
requirements of the principle, regardless of the particular


409 Twining v. New Jersey (1908) 211 U. S. 78, 53 L. Ed. 97.




572


PHILIPPINE GOVERNMENT


words of a particular constitution. This doctrine, which
has universal judicial acceptance, leads to several important consequences.  (1) A clause exempting a person
from being 'a witness against himself' protects as well a
witness as a party accused in the cause; that it, it is immaterial whether the prosecution is then and there 'against
himself' or not. So also a clause exempting 'the accused' protects equally a mere witness. (2) A clause exempting from self-criminating testimony 'in criminal
cases' protects equally in civil cases, when the fact asked
for is a criminal one. (3) The protection, under all
clauses, extends to all manner of proceedings in which
testimony is to be taken, whether litigious or not, and
whether ex parte or otherwise; it therefore applies in all
kinds of courts, in all methods of interrogation before a
court, in investigations by a grand jury, and in investigations by a legislature or a body having legislative functions." 410
The privilege is one which may be waived.41 The
rule is not the same for a corporation as for an individual. "While an individual may lawfully refuse to answer
incriminating questions unless protected by an immunity
statute, it does not follow that a corporation, vested with
special privileges and franchises, may refuse to show its
hand when charged with an abuse of such privileges." 412
The Code, be it remembered, provides that the defendant's "neglect or refusal to be a witness shall not,
in any manner, prejudice or be used against him." That
this presumption is generally deemed just is seen from
the words to be found in a decision of the Court of
Appeals of the State of New York, quoted by our Supreme Court. "A law which, while permitting a person
410 Wigmore on Evidence, Vol. IV, sec. 2252.
411 Wigmore on Evidence, Vol. IV, secs. 2275-2277.
412 Hale v. Henkel (1906) 201 U. S. 43, 50 L. Ed. 652.






BASIC PRINCIPLES


573


accused of a crime to be a witness in his own behalf,
should at the same time authorize a presumption of guilt
from his omission to testify; would be a law adjudging
guilt without evidence, and while it might not be obnoxious to the constitutional provision against compelling a party in a criminal case to give evidence against
himself, would be law reversing the presumption of innocence, and would violate the fundamental principles
binding alike upon the legislature and the courts." 418 In
United States v. Luzon, Mr. Justice Johnson said: "The
accused has a perfect right to remain silent and his silence
can not be used as a presumption of his guilt. Neither
can the sentence be increased by reason of the fact that
the defendant fails to give proof in favor of or against
his culpability; he can not be convicted of a higher offense than that alleged in the complaint simply because
he fails or refuses to testify." 41
Bail.
(Code of Criminal Procedure, secs. 63-76 too long to
quote.)
Another of the protections thrown around persons accused of crime is the right to be admitted to bail before
conviction, except for capital offenses. The reason for
this clause is because the accused must only answer a
charge not proved, and so an unnecessary indignity should
not be inflicted on one who may later be found to be innocent. In capital offenses 415-those involving a penalty
of death-it is felt, however, that monetary considerations
would not ordinarily be a restraint on the defendant. "All
that a man hath will he give for his life." To bail an
418 People v. Courtney, 94 N. Y. 490, quoted in U. S. v. Navarro
(1904) 3 Phil. 143, 155.
4144 Phil. 343, 347 (1905).
416 See 3 R. C. L. p. 9 for definition of "capital offenses."




574


PHILIPPINE GOVERNMENT


arrested person "is to deliver him in contemplation of law,
yet not commonly in real fact, to others who become entitled to his custody, and responsible for his appearance
when and where agreed in fulfillment of the purpose of
the arrest." 416
Bail is regulated in the Philippines by the Code of
Criminal Procedure. Suffice it here to state that section
63 of the Code makes bail a matter of right before conviction in all cases not capital, by copying the provisions
of most State constitutions, providing that "All prisoners
shall be bailable before conviction, except those charged
with the commission of capital offenses when proof of
guilt is evident or the presumption of guilt is strong." 417
This is a much stronger provision than that of the Spanish-Filipino law.418 The next succeeding section of the
Code recognizes the judicial discretion of the court in all
non-capital cases after judgment by any court other than
a justice of the peace. Even capital offenses, as murder
and treason, the Supreme Court has said "are bailable in
the discretion of the court before conviction." 419    The
form of the bail bond being prescribed by Philippine law,
such form must be followed in substance.420 The undertaking of the sureties on a bail bond is limited to presenting the principal when called for by the court.421
416 See generally 1 Bishop's New Criminal Procedure, 2d Ed., Ch.
17, quotation at p. 197 and 3 R. C. L., pp. 1 et seq.
417 See 1 Bishop's New Criminal Procedure, 2d Ed., pp. 209, 210,
and 3 R. C. L. p. 6.
418Ley Provisional, secs. 32-36. See Abreu, The Blending of the
Anglo-American Law with the Spanish Civil Law in the Philippine
Islands, III Philippine Law Review, May, 1914, pp. 285, 299.
419U. S. v. Babasa (1911) 19 Phil. 198, 201.
20 Bondoy v. Judge of First Instance (1909) 14 Phil. 620.
421 U. S. v. Bonoan (1912) 22 Phil. 1, giving also the procedure in
the forfeiture of bail bonds. See also the leading case of U. S. v.
Addison (1914) 27 Phil. 563.






2ASIC   I'RINCI'PLES


575


Assistance of countsel.
"If the defendant appears without counsel, he must
be informed by the court that it is his right to have counsel
before being arraigned, and must be asked if he desires
the aid of counsel. If he desires and is unable to employ
counsel, the court must assign counsel to defend him.
A reasonable time must be allowed for procuring counsel." (Code of Criminal Procedure, sec. 17.)
The President's Instructions to the Commission and
the United States Constitution in the sixth amendment
provides specifically for assistance of counsel for the defense of the accused. Judge Cooley also speaks of the
right to counsel as "perhaps the privilege most important
to the person accused of crime." 422   So the right to
counsel is one of which the defendant should not be deprived "and the failure of the court to assign counsel, or
after the counsel has been assigned, to require him to perform this duty by appearing and defending the accused
would be sufficient cause for the reversal of the case." 423
No attorney in a criminal case is at liberty to decline to
defend an improvident defendant. However, the rights
of a defendant to counsel and for reasonable time to procure counsel are strictly personal and may be waived.'42
Various other rights.
"In all criminal prosecutions the defendant shall be
entitled:
"To have the right of appeal in all cases." (Code of
Criminal Procedure, sec. 15 (8).   See also secs. 43-49,
as amended.)
422 Cooley's Constitutional Limitations, 7th Ed., p. 474.
U. S. v. Gimeno (1902) 1 Phil. 237.
IU. S. v. Kilayko (1915) XIII O. G. 1541; U. S. v. Go Leng
(1912) 21 Phil. 426; U. S. v. Labial (1914) 27 Phil. 82.




576


PHILIPPINE GOVERNMENT


"After his plea the defendant shall be entitled, on demand, to at least two days in which to prepare for trial."
(Code of Criminal Procedure, sec. 30.)
"A defendant in a criminal action shall be presumed
to be innocent until the contrary is proved, and in case
of a reasonable doubt that his guilt is satisfactorily shown
he shall be entitled to an acquittal." (Code of Criminal
Procedure, sec. 57.)
"The privileges now secured by law to the person claiming to be injured by the commission of an offense to
take part in the prosecution of the offense and to recover
damages for the injury sustained by reason of the same
shall not be held to be abridged by the provisions of this
order.; but such person may appear and shall be heard
either individually or by attorney at all stages of the
case, and the court upon conviction of the accused may
enter judgment against him for the damages occasioned
by his wrongful act. It shall, however, be the duty of the
promotor fiscal to direct the prosecution, subject to the
right of the person injured to appeal from any decision
of the court denying him a legal right." (Code of Criminal Procedure, sec. 107.)
Of these and other well-recognized rights of the accused, this only need be said: The right of appeal, although well guarded, is but a purely statutory right and
not a necessary element of due process of law.45 As to
the time in which to prepare for trial, the Supreme
Court of the Philippines held that the refusal of a trial
court to give to the defendant in a criminal action, when
demanded by him, the two days in which to prepare for
trial, such provision being mandatory and imperative
leaving no discretion in the court, deprives the accused of
a constitutional right, namely, a right to trial by due
U. S. v. Gomez (1915) XIII 0. G 1628; McKane v. Durston
(1894) 153 U. S. 684, 38 L. Ed. 867.




BASIC PRINCIPLES


577


process of law, and habeas corpus will lie to release him
from imprisonment imposed under a judgment of conviction in such case.426 On appeal 7 the United States Supreme Court took a different view, holding that under
the circumstances developed, denial of the right for time
to answer and to prepare defense was at most matter of
error which did not vitiate the entire proceedings. "But
for the sections in respect of procedure quoted from General Order No. 58 it could not plausibly be contended that
the conviction was without due process of law..
Certainly they are not so peculiarly inviolable that a
mere misunderstanding of their meaning or harmless departure from their exact terms would suffice to deprive
the proceedings of lawful effect and enlarge the accused."
As to the presumption of innocence, this, according
Judge Cooley and other writers, "is an absolute protection against conviction and punishment, except either
first, on confession in open court; or, second, on proof
which places the guilt beyond any reasonable doublt." 428
Section 107 of the Code secures to the person claiming to
be injured by the commission of an offense the privileges
to take part in the prosecution and to recover damages
for the injury sustained by reason of the same.49 We
consider hereafter further protections to persons in criminal cases, i. e., suspension of the writ of habeas corpus,
sec. 133; ex post facto laws, sec. 134; bills of attainder,
sec. 135; excessive bail, excessive fines, and cruel and unusual punishments, sec. 136; unreasonable searches and
seizures; warrants, sec. 137; treason, sec. 138; etc.
An unmixed gain to the personal rights is represented
426 Shields v. McMicking (1912) 23 Phil. 526.
'27McMicking v. Shields (1915) 238 U. S. 99, 59 L. Ed. 1220.
Compare with 8 R. C. L. pp. 67, 68.
28 Cooley's Constitutional Limitations, 7th Ed., p. 439.
429 See Springer v. Odlin (1904) 3 Phil. 344 and many other cases.
P. I. Govt.-37.




578


PHILIPPINE GOVERNMENT


by the changes in Criminal Procedure.430 To quote Mr.
Justice Day in Dorr v. United States: "It can not be successfully maintained that this system (the Philippine judicial system) does not give an adequate and efficient
method of protecting the rights of the accused as well
as executing the criminal law by judicial proceedings,
which give full opportunity to be heard by competent tribunals before judgment can be pronounced." *8 Qucvre.
Has not the State out of over zealousness to be fair
gone too far and placed too many weapons in the hands
of those accused of crime?
~ 133. Suspension of the Writ of Habeas Corpus.

Philippines.
"That the privilege of the writ
of habeas corpus shall not be suspended, unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events
the same may be suspended by
the President, or by the Governor-General, with the approval
of the Philippine Commission,
wherever during such periods the
necessity for such suspension
shall exist." (Philippine Bill, sec.
5, par. 7.)
"That the privilege of the writ
of habeas corpus shall not be suspended, unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events
'the same may be suspended by


United States.
"The privilege of the writ of
habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public
safety may require it." (United
States Constitution, art. I, sec. 9,
par. 2.)


o0 Abreu, The Blending of the Anglo-American Common Law
with the Spanish Civil Law in the Philippines, III Philippine Law
Review, May, 1914, pp. 286, 302.
81 195 U. S. 138, 146, 49 L. Ed. 128, 11 Phil. 706 (1904).




BASIC PRINCIPLES


579


the President, or by the Governor-General, wherever during
such period the necessity for such
suspension shall exist."  (Philippine Autonomy Act, sec. 3,
par. 7.)
The Governor-General "may,
in case of rebellion or invasion,
or imminent danger thereof,
when the public safety requires
it, suspend the privileges of the
writ of habeas corpus, or place
the islands, or any part thereof,
under martial law: Provided,
That whenever the GovernorGeneral shall exercise this authority, he shall at once notify the
President of the United States
thereof, together with the attending facts and circumstances, and
the President shall have power
to modify or vacate the action of
the Governor-General." (Philippine Autonomy Act, sec. 21,
portion.)
The implantation of the writ of habeas corpus, often
termed "the writ of liberty," in the Philippines was one
of the most praiseworthy and beneficent acts of the American administration.    From  the Habeas Corpus Act of
1679, and even centuries before, down to the present,
this great writ has been a privilege dear to all English
speaking people. It is now the priceless heritage of the
Filipino people, protecting every person against arbitrary
arrest. As illustrating its potent effect, it is said that immediately on going into force in the Philippines, more
than one hundred prisoners were liberated from an unwarranted detention.48
482 Report of the War Department, June 30, 1900, Report of the
Military Governor of the Philippine Islands, p. 19; Abreu, The Blend



580


PHILIPPINE GOVERNMENT


The general rules which govern the issuance of the
writ of habeas corpus belong to the field of remedial
law."    The constitutional phase pertaining to suspension of the writ was covered in the Philippines in the
case of Barcelon v. Baker.'84 Therein, in a learned opinion by Mr. Justice Johnson (here modified to conform
to the provisions of the Philippine Autonomy Act which
omits reference to the Philippine Commission), it was
held: 1. That the privilege of the writ of habeas corpus
may be suspended in the Philippine Islands in the case
of rebellion, insurrection, or invasion when the public
safety requires it, by the President of the United States
or by the Governor-General of the Philippine Islands;
2. That there is conferred upon the President or the
Governor-General discretionary power to determine
whether or not there exists the state of rebellion, insurrection, or invasion and whether the public safety requires the suspension of the privilege of the writ; and 3.
That when the President or the Governor-General declares that a state of rebellion, insurrection, or invasion
exists, this declaration is conclusive against the Judicial
Department of the Government.
~ 134. Ex post facto laws.
Philippines.                 United States.
"That no... ex post facto  "No.. ex post facto law
law shall be passed."  (Presi-  shall be passed." (United States
dent's Instructions to the Philip-  Constitution, art. I, sec. 9, par. 3,
pine Commission.)             portion.)
"That no ex post facto law    "No State shall... pass
ing of the Anglo-American Common Law with the Spanish Civil
Law in the Philippine Islands, III Philippine Law Review, May, 1914,
pp. 298, 299.
488 See Bailey on Habeas Corpus, Church on Habeas Corpus, and
other texts; and opinions of the Supreme Court of the United States
and of the Philippines.
434 5 Phil. 87 (1905).




BASIC PRINCIPLES


581..   shall be enacted." (Phil-  any...ex post facto law."
ippine Bill, sec. 5, par. 8, por-  (United States Constitution, art.
tion.)                       I, sec. 10, par. 1, portion.)
"That no ex post facto law
~.. shall be enacted." (Philippine Autonomy Act, sec. 3, par.
8, portion.)
An ex post facto law was defined by Mr. Chief Justice
Marshall in Fletcher v. Peck to be one which makes an act
punishable "in a manner in which it was not punishable
when committed." "6 The New York Court, copying this
quotation, says that if to this there be added "or which
increases the punishment with which the act was punishable when committed," the definition is as complete and
certain as it can well be made.46  Mr. Justice Chase in
the early and basic case of Calder v. Bull said that: "The
prohibition,...  is an additional bulwark in favor
of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation,"-and that he considered as ex post
facto laws the following: "lst. Every law that makes
an action done before the passing of the law, and which
was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes
it greater than it was, when committed. 3d. Every law
that changes the punishment that the law annexed to the
crime, when committed. 4th. Every law that alters the
legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." 87
To this, Judge Cooley would add: "5. Every law which,
assuming to regulate civil rights and remedies only, in
5 6 Cranch 87, 3 L. Ed. 162 (1810).
486 Shepherd v. People (1862) 25 N. Y. 406.
4873 Dall. 386, 390, 1 L. Ed. 648 (1798). Definition followed in
Mekin v. Wolfe (1903) 2 Phil. 74.




582


PHILIPPINE GOVERNMENT


effect imposes a penalty or the deprivation of a right for
something which when done was lawful. And 6. Every
law which deprives persons accused of crime of some lawful protection to which they have become entitled; such
as the protection of a former conviction or acquittal, or
of a proclamation of amnesty." 488 The test by which
one can determine whether a law is ex post facto or not is
stated by the United States Supreme Court, reviewing
their previous decisions, thus: "A statute belongs to
that class which by its necessary operation and 'in its relation to the offense, or its consequences, alters the situation of the accused to his disadvantage.' " 489
Acknowledging the authority of Calder v. Bull, there
are yet judicial modifications which should be emphasized.  The first negation is found in the case itself
which confines the prohibition to laws of a criminal nature; so all retrospective laws are not ex post facto laws.4~
A number of Philippine cases have upheld and applied
retrospective or retroactive laws.41 Again, the mere fact
of an alteration in the manner of punishment without reference to the question of mitigation does not necessarily
render an act obnoxious to the constitutional provision.442
"Statutes regulating procedure, if they leave untouched
all the substantial protections with which existing law
surrounds the person accused of crime, are not within
488 Cooley, Principles of Constitutional Law, p. 313.
489Thompson v. Utah (1898) 170 U. S. 343, 42 L. Ed. 1061. See
also Kring v. Missouri (1883) 107 U. S. 221, 27 L. Ed. 506 and People v. McDonald (1895) 5 Wyo. 526, 29 L. R. A. 834.
440 See as corroborative local authorities Mekin v. Wolfe (1903)
2 Phil. 74; Paynaga v. Wolfe (1903), 2 Phil. 146; U. S. v. Ang Kan
Ko (1906) 6 Phil. 376; 4 Op. Atty. Gen. P. I. 43; and U. S. v.
Heinszen (1907) 206 U. S. 370, 51 L. Ed. 1098.
441 See sec. 176 infra and notes thereto.
"2 Peckham J. in People v. Hayes (1894) 140 N. Y. 484, 492, 23
L. R. A. 830. In several cases changes in the manner of punishment
have been held valid. Commonwealth v. Wyman (1853) 12 Cush.




BASIC PRINCIPLES


583


the constitutional inhibition of ex post facto laws." 4"
Finally, without mentioning other principles which are
best stated in Cooley's Constitutional Limitations,4     the
United States Supreme Court has said: "Any statutory
alteration of the legal rules of evidence which would
authorize conviction upon less proof, in amount or degree, than was required when the offense was committed,
might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change
the ingredients of the offense, or the ultimate facts necessary to establish guilt, but, leaving untouched the nature
of the crime, and the amount or degree of proof essential
to conviction, only remove existing restrictions upon the
competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be
said to have a vested right, and which the state, upon
grounds of public policy, may regulate at pleasure." '6
(Mass.) 237 (death to life imprisonment); Commonwealth v. Gardner (1858) 11 Gray (Mass.) 438 (same); McGuire v. State (1898)
76 Miss. 504, 25 So. 495 (same); Rooney v. North Dakota, (period
of confinement before execution increased from 3-6 months to
6-9 months), Harlan, J., saying (196 U. S. 325, 25 Sup. Ct.?66,
49 L. Ed. 494, 3 Ann. Cas. 76): "The court must assume that every
rational person desires to live as long as he may;" State v. Williams
(1846) 2 Rich. (S. C.) 418, 45 Am. Dec. 741 (death to whipping,
imprisonment and fine); Strong v. State (1822), 1 Blackf. (Ind.) 193
(whipping to imprisonment).... A change in punishment that
is in good faith referable to prison discipline as its primary object is
valid, even though more onerous. Hartung v. People (1860) 22 N.
Y. 95, 105; Murphy v. Commonwealth (1899) 172 Mass. 264, 269, 52
N. E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266 (cases). Hall's
Cases on Constitutional Law, p. 171, note.
44 Thompson v. Utah, (1898) 170 U. S. 343, 42 L. Ed. 1061, citing
Cooley's Constitutional Limitations and previous decisions of the
United States Supreme Court.
4 7th Ed., pp. 372 et seq.
"4 Hopt v. Utah (1884) 110 U. S. 574, 590, 28 L. Ed. 262.




584


PHILIPPINE GOVERNMENT


Both the Penal Code and the Civil Code of the Philippines conform generally to the common law doctrines
just stated.46 Our Supreme Court, quoting article 21
of the Penal Code, said that: "It is a well-settled doctrine
that penal statutes can not be made retroactive, except
in the case they are favorable to the accused." 47 But
in another case, Mr. Justice Carson, speaking for the
Court, after citing articles 21 and 22 of the Penal Code,
found: "The courts of Spain and the learned commentators on Spanish law have construed these provisions to
mean that penal laws are to be given a retroactive effect
only in so far as they favor the defendant charged with
a crime or a misdemeanor, and that, when a penal law
is enacted repealing a prior law, such repeal does not
have the effect of relieving an offender in whole or in
part of the penalties already incurred under the old law,
unless the new law favors the defendant by diminishing
the penalty or doing away with it altogether, and then
only to the extent to which the new law is favorable to
the offender." 448 Later in the same case the Justice cited
article 3 of the Civil Code and accepted the doctrine laid
down by the Spanish commentators in preference to the
common law rule as more nearly consonant with the
dictates of good sense and sound judgment. Act 864
increasing the subsidiary imprisonment authorized by existing law was held void as to a crime committed prior
to the former's passage, being as to such crime an ex post
446 "No felony or misdemeanor shall be punishable by any penalty
not prescribed by law prior to its commission.
"Penal laws shall have a retroactive effect insofar as they favor
the person guilty of a felony or misdemeanor, although at the time
of the publication of such laws a final sentence has been pronounced
and the convict is serving same." Penal Code, arts. 21, 22. See also
Civil Code, art. 3.
47 U. S. v. Macasaet (1908) 11 Phil. 447, 449.
"48U. S. v. Cuna (1908) 12 Phil. 241.




BASIC PRINCIPLES


585


facto law."  In considering the force of Act 1773 of
the Philippine Commission which went into force on
October 11, 1907, as to a crime committed prior thereto,
although the complaint was not filed until January 18,
1908, Mr. Justice Torres expressed this view: "It is not
lawful to attribute retroactive effects to the said Act of
the Philippine Commission for the reason that, even
though it refers to a matter of procedure, it does not contain any clause making it retroactive in its effects, and
furthermore, the provisions thereof if applied now are
prejudicial to the accused." '  But "the assumption of
jurisdiction over crimes committed before jurisdiction
was conferred is not in violation of the ex post facto
clause of the Philippine Bill." '
~ 135. Bills of attainder.


Philippines.
"That no    bill of attainder..shall be passed."   (President's Instructions to the Philippine Commission.)
"That no... bill of attainder shall be enacted." (Philippine Bill, sec. 5, par. 8, portion.)
"That no..    bill of attainder shall be enacted." (Philippine Autonomy Act, sec. 3, par.
8, portion.)


United States.
"No bill of attainder...
shall be passed." (United States
Constitution, Art. I, sec. 9, par. 3,
portion.)
"No State shall... pass
any bill of attainder." (United
States Constitution, Art. I, sec.
10, par. 1, portion.)


In the case of Cummings v. Missouri, Mr. Justice Field
describes a bill of attainder, as follows: "A    bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death,
49 U. S. v. Ang Kan Ko (1906) 6 Phil. 376.
4M0 U. S. v. Gomez (1908) 12 Phil. -279, 282.
61 U. S. v. Jueves (1912) 23 Phil. 100, 105.




586


PHILIPPINE GOVERNMENT


the act is termed a bill of pains and penalties. Within
the meaning of the Constitution, bills of attainder include
bills of pains and penalties. In these cases the legislative
body, in addition to its legitimate functions, exercises the
powers and office of judge; it assumes, in the language
of the text-books, judicial magistracy; it pronounces upon
the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs
produced, whether conformable to the rules of evidence
or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the
offense." 462 In the case of Ex parte Garland of about the
same time, Mr. Justice Miller said: "I think it will be
found that the following comprise those essential elements
of bills of attainder, in addition to the one already mentioned (which was that they declared certain persons attainted and their blood corrupted, so that it had lost all
heritable property), which distinguished them from other
legislation, and which made them so obnoxious to the
statesmen who organized our government: 1. They were
convictions and sentences pronounced by the legislative
department of the government, instead of the judicial.
2. The sentence pronounced and the punishment inflicted
were determined by no previous law or fixed rule. 3.
The investigation into the guilt of the accused, if any
such were made, was not necessarily or generally conducted in his presence or that of his counsel, and no recognized rule of evidence governed the inquiry." 4' Both
of these decisions have been expressly confirmed by the
Supreme Court of the United States.'45
History reveals such legislative convictions under foreign governments. The most atrocious instance was the
4s54 Wall. 277, 323, 18 L. Ed. 356 (1867).
s8 4 Wall. 333, 388, 18 L. Ed. 366 (1867).
L" Pierce v. Carskadon (1873) 16 Wall 234, 21 L. Ed. 276.




BASIC PRINCIPLES


587


great act of attainder passed in 1688 by the Parliament
of James II by which between two and three thousand
persons were attainted, their property confiscated, and
themselves sentenced to death in farcial proceedings."5
Fortunately, the courts of these Islands have been called
upon to deal with no case involving a bill of attainder.
Let us hope that our records, legislative and judicial, will
thus remain. As Judge Cooley well asks: "What could
be more obnoxious in a free government than the exercise of such a power by a popular body, controlled by a
mere majority, fresh from the contests of exciting elections, and quite too apt, under the most favorable circumstances, to suspect the motives of their adversaries, and to
resort to measures of doubtful propriety to secure party
ends?" '4
~ 136. Excessive bail, excessive fines, and cruel and
unusual punishments.


Philippines.
"That excessive bail shall not
be required, nor excessive fines
imposed, nor cruel and unusual
punishment   inflicted."  (President's Instructions to the Philippine Commission.)
"That excessive bail shall not
be required, nor excessive fines
imposed, nor cruel and unusual
punishment inflicted."  (Philippine Bill, sec. 5, par. 10.)
"That excessive bail shall not
be required, nor excessive fines
imposed, nor cruel and unusual
punishment inflicted." (Philippine Autonomy Act, sec. 3, par.
10.)


United States.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." (United
States Constitution, eighth
amendment.)


'55 See Macaulay's History of England.
456 Cooley's Constitutional Limitations, 7th Ed., p. 369. See further
8 R C. L. p. 257.




588


PHILIPPINE GOVERNMENT


The above constitutional provisions, it will be noted,
are exactly similar in phraseology. They are, moreover,
a transcript of a clause in the English Bill of Rights of
1689.
Excessive bail shall not be required.
This is the negative of the requirement admitting the
accused to bail, discussed previously in section 132. The
Supreme Court of the Philippines has said of this clause
that "the word 'bail' as used in that portion of section
5 of the Act of Congress of July 1, 1902, which provides
that 'excessive bail shall not be required' is inadequately
translated by the word 'fianza,' as a bail implies a particular kind of bond-that is to say, a bond given to secure
the personal liberty of one held in restraint upon a criminal or quasi criminal charge." 7   What is not excessive
bail is a question which addresses itself to the judicial
discretion.458 Judge Cooley says "That bail is reasonable
which, in view of the nature of the offense, the penalty
which the law attaches to it, and the probabilities that
guilt will be established on the trial, seems no more than
sufficient to secure the party's attendance. In determining this, some regard should be had to the prisoner's
pecuniary circumstances; that which is reasonable bail to
a man of wealth being equivalent to a denial of right
if exacted of a poor man charged with the life
offense." 469
467 Insular Government v. Punzalan (1907) 7 Phil. 546, 548.
458 Discussion by Mr. Livermore in Congress in which he said:
"What is meant by the terms 'excessive bail?' Who are to be the
judges? What is understood by 'excessive fines'? It lays with the
court to determine." Quoted in Weems v. U. S. (1910) 217 U. S. 349,
369, 54 L. Ed. 793.
i69 Cooley's Constitutional Limitations, 7th Ed., p. 439.




BASIC PRINCIPLES


589


Excessive fines shall not be imposed.
The permissible penalties are, of course, for the legislative body to determine. When so determined if a court
keep within the limits of the statute, the fine can not
usually be held unreasonable. Thus a minimum penalty of
three hundred pesos for violations of the penal provisions
of the Opium Law is not excessive in the sense in which
that word is used in the Philippine Bill of Rights."60
However, the court may and should take into consideration the defendant's ability to pay the fine."6
Cruel and unusual punishment shall not be inflicted.
Curiously enough the Philippines have had the uncertain honor of furnishing in the case of Weems v. United
States '6  what has been described by Professor Willoughby as "probably the most interesting discussion
which the prohibition of cruel and unusual punishments
has received by the Supreme Court," '6 and has been
termed by Mr. Justice White, now the Chief Justice, "an
interpretation of the eighth amendment,...  The
great importance of the decision is hence obvious." 4
Weems was convicted by a Court of First Instance of falsification of a public document by a public official, and sentenced to the penalty of fifteen years of cadena, together
with the accessories of article 56 of the Penal Code and to
pay a fine of four thousand pesetas, but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on account of the nature of the main penalty, and to
pay the costs of the cause. The judgment and sentence
460 U. S. v. Valera (1914) 26 Phil. 598.
461 See generally Cooley's Constitutional Limitations, 7th Ed., p.
471; 8 R. C. L. p. 270; 35 L. R. A. 561, note.
461a 217 U. S. 349, 54 L. Ed. 793 (1910).
462 2 Willoughby on the Constitution, pp. 831, 832.
463 Weems v. U. S. id., dissenting opinion.




590


PHILIPPINE GOVERNMENT


was affirmed by the Supreme Court of the Philippines.4
The question of cruel and unusual punishment was not
raised in the Philippine courts, but, nevertheless, the
United States Supreme Court took cognizance of the assignments of error to this effect under the right reserved
in its Rule 35. The Court held that the penalty of cadena
temporal which is prescribed by the Philippine Penal
Code for the crime of falsification of a public document
by a public official is a cruel and unusual punishment forbidden by the Philippine Bill of Rights.465 Mr. Justice
White, with whom concurred Mr. Justice Holmes, wrote
a strong dissenting opinion.
Mr. Justice McKenna in his opinion for the court, in
considering what constitutes a cruel and unusual punishment, found from a review of the cases and the text writers that it had not been exactly decided. "It has been
said that ordinarily the terms imply something inhuman
and barbarous,-torture and the like. McDonald v. Con.
173 Mass. 322, 73 Am. St. Rep. 293, 53 N. E. 874.
Other cases have selected certain tyrannical
acts of the English monarchs as illustrating the meaning
of the clause and the extent of its prohibition." The court
also quoted from Wilkerson v. Utah (1897) 99 U. S. 130,
25 L. Ed. 345, in which the court's final commentary was
that "difficulty would attend the effort to define with exactness the extent of the constitutional provision which
provides that cruel and unusual punishments shall not be
inflicted; but it is safe to affirm that punishments of
torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the Constitution. Cooley, Const. Lim. 4th ed. 408; Wharton, Crim.
46 7 Phil. 241 (1906).
466 Derivatory statement of Mr. Justice Carson of the Supreme
Court of the Philippines in U. S. v. Pico (1911) 18 Phil. 386.




BASIC PRINCIPLES


591


Law, 7th ed., sec. 3405"-and from   in Re Kemmler
(1880) 136 U. S. 436, 34 L. Ed. 519, where this comment was made: "Punishments are cruel when they involve torture or a lingering death; but the punishment
of death is not cruel, within the meaning of that word as
used in the Constitution. It implies there something inhuman and barbarous, and something more than the mere
extinguishment of life." The Justice then contends for
a liberal construction of the Constitution with contemplation of not only what has been but what may be, and for
the right of the court to intervene, notwithstanding the
conceded power of the legislature to define crimes and
fix their punishments. A contrast of the punishment imposed on Weems with other penalties, the court finally
states, condemns the sentence in this case as cruel and
unusual.
One can hardly commit heresy by mentioning, what is
merely the truth, that the opinion of the United States
Supreme Court in the Weems case met with little favor,
to put it lightly, from the bar of the Philippine Islands.
It was felt that the Court had been misled by a faulty
English translation of the Penal Code and by a misunderstanding of local practice. But, of course, those incarcerated in Insular prisons seized on the ruling in order
to attempt to gain freedom. The official report of the
Director of Prisons disclosed nearly five hundred prisoners serving sentences of cadeta temporal or cadena perpetua.l"
This was the grave situation which confronted the Supreme Court of the Philippine Islands. It met the difficulty by setting at liberty those convicted of and imprisoned for the crime of falsification of a public document,
the identical crime in the Weems' case.467 But the Court
466 Given in U. S. v. Pico, id., at page 389.
467 See U. S. v. Pacheco (1911) 18 Phil. 399 and other cases.




592


PHILIPPINE GOVERNMENT


in the opinion of Mr. Justice Carson in the case of United
States v. Pico '6 refused to extend the principle to any
other crime whatever its nature in which the penalties
of cadena temporal or cadena perpetua were inflicted.
The general opinion was reflected by the practical observation "that a holding by this court that the decision in the
Weems case involves a declaration that the various provisions of the Penal Code prescribing either the penalty
of cadena perpetua or that of cadena temporal are repugnant to the Philippine Bill of Rights, and that this court
is bound thereby, would result in a general jail delivery
of all those heretofore convicted of many of the gravest
and most heinous offenses defined and penalized by law;
and would be substantially equivalent to a proclamation
of amnesty in favor of all those who have heretofore committed such crimes and have not yet been brought to trial,
or who may commit them hereafter until such time as
the Legislature may be able to reform the Penal Code."
Moreover, it declined "to be bound by inferences drawn
from observations and comments contained in the opinion
in that case which appear to be based upon a misapprehension of facts" or, similarly, "to hold ourselves bound
by the further inference, not expressly drawn by the
court itself, that the penalties of cadena perpetua and
cadena temporal, as prescribed by existing law in these
Islands, are inherently and essentially cruel and unusual
punishments." Finally, after giving a correct version of
the applicable articles of the Penal Code, the Court said:
"We do not think that an obsolete provision of the Spanish Penal Code which is not now enforced and has not
been enforced since the Islands were brought under the
present sovereignty; which was not enforced at the time
when the constitutional guaranty against the infliction of
cruel and unusual punishments was inserted in the Philip

s167 18 Phil. 386 (1911).




BASIC PRINCIPLES


593


pine Bill of Rights; and which there is no lawful authority to require the prison officials to put in force in the
future, if the enforcement be held to involve the infliction of a cruel and unusual punishment, should at this
late day be given such vital force as to invalidate many
of the most important provisions of existing law, and
thus impose upon this court the duty of setting at liberty
in the community hundreds of the vilest criminals and of
proclaiming the immunity of all those who have heretofore been guilty of many of the gravest and most heinous
offenses known to the law."
Thus stands the unusual Philippine situation in regard
to cruel and unusual punishment as enunciated in the
Weems case and as enforced in the Pico case. As minor
constructions, a local case has held that the prohibition
against cruel and unusual punishments does not apply to
such penalty as banishment, which, though unusual, is
not cruel."  Another case has reached the conclusion that
the penalties prescribed for violations of Act 98 of the
Philippine Commission are neither excessive, nor cruel
and unusual in the sense in which those words are used
in the organic legislation enforced in the Islands."
~ 137. Unreasonable searches and seizures; warrants.
Philippines.                 United States.
"That the right to be secure  "The right of the people to be
against unreasonable searches  secure in their persons, houses,
and seizures shall not be violat-  papers, and effects, against uned." (President's Instructions to  reasonable searches and seizures,
the Philippine Commission.)   shall not be violated, and no war"That the right to be secure  rants shall issue but upon prob"s Legarda v. Valdez (1902) 1 Phil. 146.
4 Fisher v. Yangco Steamship Company (1915) XIII O. G. 2076.
As two of many other examples, death by hanging or electricity is not
a cruel and unusual punishment; vasectomy can be performed. See
8 R C. L. pp. 264, 268 etc.
P. I. Govt.-38.




594


PHILIPPINE GOVERNMENT


against unreasonable searches
and seizures shall not be violated." (Philippine Bill, sec. 5, par.
11.)
"That the right to be secure
against unreasonable searches
and seizures shall not be violated." (Philippine Autonomy Act,
sec. 3, par. 11.)
"That no warrant shall issue
but upon probable cause, supported by oath or affirmation,
and particularly describing the
place to be searched and the person or things to be seized."
(Philippine Bill, sec. 5, par. 18.)
"That no warrant shall issue
but upon probable cause, supported by oath or affirmation,
and particularly describing the
place to be searched and the person or things to be seized."
(Philippine Autonomy Act, sec.
3, par. 18.)


able cause, supported by oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be
seized." (United States Constitution, Fourth Amendment.)


"A man's house is his castle" is a maxim of all civilized
peoples protected with solicitous care by many constitutions. A passage in Chatham's eloquent speech on General
Warrants is classic-"The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may
be frail; its roof may shake; the wind may blow through
it; the storm may enter; the rain may enter; but the King
of England may not enter; all his force dares not cross the
threshold of the ruined tenement." 470 Executive officers.
shall not be permitted to abuse their authority or to intrude without warrant on private property. In the earliest
of two Philippine leading cases Mr. Justice Johnson said:
"The inviolability of the home is one of the most
fundamental of all the individual rights declared and


470 Quoted in U. S. v. De los Reyes (1911) 20 Phil. 467, 473.




BASIC PRINCIPLES


595


recognized in the political codes of civilized nations. No
one can enter into the home of another without the consent of its owners or occupants.
"The privacy of the home-the place of abode, the
place where a man with his family may dwell in peace
and enjoy the companionship of his wife and children unmolested by anyone, even the king, except in rare caseshas always been regarded by civilized nations as one of
the most sacred personal rights to which men are entitled.
Both the common and the civil law guarantee to man
the right of absolute protection to the privacy of his
home. The king was powerful; he was clothed with
majesty; his will was the law, but, with few exceptions,
the humblest citizen or subject might shut the door of
his humble cottage in-the face of the monarch and defend his intrusion into that privacy which was regarded
as sacred as any of the kingly prerogatives. The poorest
and most humble citizen or subject may, in his cottage,
no matter how frail or humble it is, bid defiance to all
the powers of the state; the wind, the storm and the sunshine alike may enter through its weather-beaten parts,
but the king may not enter against its owner's will; none
of his forces dare to cross the threshold of even the
humblest tenement without its owner's consent." 471
When the fourth amendment to the United States Constitution was carried into the Philippine Organic Acts,
it was divided into two parts. This division and the
slight change in phraseology have undoubtedly not altered the effect, so that English and American principles
would still control.'72
The nature and history of the prohibition is most exhaustively discussed by Lord Camden in Entick v. Carrington, reported at length in 19 Howell, St. Tr., 1029
71 U. S. v. Arceo (1904) 3 Phil. 381, 384.
I72 See U. S. v. Wilson (1905) 4 Phil. 317.




596


PHILIPPINE GOVERNMENT


(decided in 1765), and "the law as expounded by him has
been regarded as settled from that time to this"-and by
Mr. Justice Bradley in Boyd v. United States.478      In the
second Philippine leading case of United States v. De los
Reyes 7    in which appears extensive quotations from
Cooley's   Constitutional    Limitations,   Viada's   Commentaries on the Penal Code, and other American and
Spanish authorities, the general American rule is stated
by Mr. Justice Moreland to be as follows: "No public
official or other person in any country where that portion of the Constitution of the United States against
searches and seizures or similar provision is in force, has
the right to enter the premises of another without his
consent for the purpose of search or seizure without first
being provided with the proper search warrant for the
purpose, obtained in the manner provided by law." Applied directly to the Philippines, "No one can enter the
dwelling house of another in these Islands, without ren478 116 U. S. 616, 626, 29 L. Ed. 746 (1886) describing the case of
Entick v. Carrington above mentioned.
474 20 Phil. 467 (1911). The court quotes, among others, from the
case of McClurg v. Brenton (1904) 123 Iowa, 368, where the court,
speaking of the right of an officer to enter a private house to search
for stolen goods, said:
"The right of the citizen to occupy and enjoy his home, however
mean or humble, free from arbitrary invasion and search, has for
centuries been protected with the most solicitous care by every court
in the English-speaking world, from Magna Charta down to the
present, and is embodied in every bill of rights defining the limits of
governmental power in our own republic.
"The mere fact that a man is an officer, whether of high or low
degree, gives him no more right than is possessed by the ordinary
private citizen to break in upon the privacy of a home and subject its
occupants to the indignity of a search for the evidence of crime, without a legal warrant procured for that purpose. No amount of incriminating evidence, whatever its source, will supply the place of
such warrant. At the closed door of the home, be it palace or hovel,
even blood-hounds must wait till the law, by authoritative process,
bids it open."




BASIC PRINCIPLES


597


dering himself liable under the law, unless he has the
express consent of the owner and unless the one seeking
entrance comes within some of the exceptions dictated by
the law or by a sound public policy." vm Corporations are
protected as well as individuals.'7
Some qualifications of the absolute rule regarding the
inviolability of the dwelling should be set down. One
such exception is article 492 of the Penal Code exempting
from punishment "any person who enters another's dwelling for the purpose of preventing or evading some serious
harm to himself, the occupants of the dwelling, or a third
person, nor shall it be applicable to any person who enters
a dwelling for the purpose of rendering some service to
humanity or justice." Another exception is that a man
may not use his "castle as a citadel for aggression against
his neighbors, nor can he within its walls create such disorder as to affect their peace." So in the case where the
quoted words appear, the court thrown back on the common law powers of a policeman held that "in the absence of any other disposition in the statutes or in the
local ordinances, a duly appointed police officer in these
Islands has those powers which, under the common law
of England and America, belong to a peace officer, and
among them the power to arrest without warrant for offenses of this nature committed in his presence." 4'7 The
Charter of the city of Manila (sec. 2435 Administrative
Code) permits peace officers to "pursue and arrest, without warrant, any person found in suspicious places or
under suspicious circumstances reasonably tending to
show that such person has committed, or is about to commit, any crime or breach of the peace; to arrest or cause
47 U. S. v. Arceo (1904) 3 Phil. 381, 385.
76 Hale v. Henkel (1906) 201 U. S. 43, 50 L. Ed. 652.
" U. S. v. Vallejo (1908) 11 Phil. 193, 195, 197. See also U. S. v.
Wilson (1905) 4 Phil 317; IV Op. Atty. Gen. P. I. 653 (suspension
of gambling).




598


PHILIPPINE GOVERNMENT


to be arrested, without warrant, any offender when the
offense is committed in the presence of a peace officer or
within his view; in such pursuit or arrest to enter any
building, ship, boat, or vessel, or take into custody any
person therein suspected of being concerned in such crime
or breach of the peace, and any property suspected of
having been stolen." Notwithstanding, a policeman who,
without warrant, arrests for a misdemeanor a person who
has not committed any misdemeanor commits the crime
of coacci6n.478 Another proviso gives the authorities the
right to compel entrance to dwelling houses against the
will of the owners for sanitary purposes. "The government has this right upon grounds of public policy. It
has a right to protect the health and lives of all its
people." '79 Municipal ordinances usually give sanitary inspectors and other officers such authority between certain
specified hours.480 Finally is a special case permitting officers to search for taxable property. The Internal Revenue Law of 1914 recognizes this prerogative by providing: "Any officer or agent of internal revenue may in the
discharge of his official duties enter any house, building,
or place where articles subject to an internal-revenue tax
are produced or kept, or are believed by him upon reasonable grounds to be produced or kept, so far as may be
necessary to examine or discover the same." 481 The Attorney-General was of the opinion that a somewhat similar section of the old law was not in conflict with the
provisions of the Philippine Bill, the Penal Code, or any
other law in force in these Islands.482
478 U. S. v. Alexander (1907) 8 Phil. 29, following U. S. v. Ventosa (1906) 6 Phil. 385.
4s U. S. v. Arceo (1904) 3 Phil. 381, 384.
480 See for example secs. 663, 664, 665, Revised Ordinances, City of
Manila, of 1908.
481 Act. 2339, sec. 122. Compare with secs. 326, 327, Customs Administrative Act (Act 355).
482 III Op. Atty. Gen. P. I. 174.




BASIC PRINCIPLES


599


A search warrant is defined by our Code of Criminal
Procedure to be "an order in writing, issued in the name
of the United States, signed by a judge or a justice of
the peace, and directed to a peace officer, commanding
him to search for personal property and bring it before
the court." "8 (Sec. 95.) It may issue upon either of
two grounds: 1. When the property was stolen or embezzled; and 2. When it was used or when the intent exists
to use it as the means of committing a felony. (Sec.
96.) To make the matter stronger the Code provides:
"A search warrant shall not issue except for probable
cause and upon application supported by oath particularly
describing the place to be searched and the person or
thing to be seized." (Sec. 97.) Other safeguards are
thrown around the search warrant. In general the statute
is in accord with the American principles of Criminal
Procedure.484 The warrant will always be construed with
the utmost strictness.
As to the portion of the clause reading: "No warrants
shall issue but upon probable cause, supported by oath or
affirmation and particularly describing the place to be
searched and the person or things to be seized," our Supreme Court has said that it cannot "be held to apply
to all criminal cases...   It is probable that the
article was intended to apply to cases where an arrest
without a warrant was not allowed and in which it was
necessary that a warrant should be issued in order to
get the accused person before the court." 486 The Court
again says that "the question whether 'probable cause'
exists or not must depend upon the judgment and discretion of the judge or magistrate issuing the warrant.... It simply means that sufficient facts must be
488 See G. 0. 58, secs. 95-106.
484 See Cooley's Constitutional Limitations, 7th Ed., pp. 424 et seq.
and I Bishop's New Criminal Procedure, 2d Ed., Ch. XVI.
48s U. S. v. Wilson (1905) 4 Phil. 317, 323, 324.




600


PHILIPPINE GOVERNMENT


presented to the judge or magistrate issuing the warrant
to convince him, not that the particular person has committed the crime, but that there is probable cause for believing that the person whose arrest is sought committed
the crime charged.""6 The functions of determining that
probable cause exists for the arrest of a person accused
is only quasi-judicial and can for instance, be delegated
to a prosecuting attorney."7
An officer is protected by his warrant so long as he
does not exceed the command. The Penal Code punishes
those who enter the dwelling house, without permission
or without lawful authority.48 And the Code of Criminal Procedure punishes "any person who shall procure a
search warrant maliciously and without probable cause,
and any officer who shall unlawfully exceed his authority or use unnecessary severity in executing the same."
(Sec. 106.)
~ 138. Treason.
Philippines.                  United States.
"Every person, resident in the  "Treason against the United
Philippine Islands, owing alle-  States shall consist only in levy486 U. S. v. Ocampo (1910) 18 Phil. 1, 41, 42, italics those of court,
affirmed on appeal, followed in U. S. v. Grant (1910) 18 Phil. 122.
"Probable cause may be defined as such reasons, supported by facts
and circumstances, as will warrant a cautious man in the belief that
his action, and the means taken in prosecuting it, are legally just and
proper." Burton v. St. Paul, M. & M. Ry. Co. (1885) 33 Minn. 189.
Quoted in U. S. v. Addison (1914) 28 Phil. 566, 570.
487Ocampo v. U. S. (1914) 234 U. S. 91, 58 L. Ed. 1231.
488 Arts. 205 et seq. See U. S. v. Macaspac (1907) 9 Phil. 207;
U. S. v. De los Reyes (1911) 20 Phil. 467, containing commentaries
by Viada and Groizard. Art. 491. U. S. v. Arceo (1904) 3 Phil.
381. See further U. S. v. Ostrea (1903) 2 Phil. 93; U. S. v. Samson
(1905) 4 Phil. 123; U. S. v. Agas (1905) 4 Phil. 129; U. S. v. Rijano
(1905) 5 Phil. 215; U. S. v. Clauck (1906) 6 Phil. 486; U. S. v.
Dionisio (1908) 12 Phil. 283; U. S. v. Abanto (1910) 15 Phil. 223;
U. S. v. Gamilla (1910) 15 Phil. 425; and other cases re forcible entry
of a dwelling.




BASIC PRINCIPLES


601


giance to the United States or
the Government of the Philippine Islands, who levies war
against them or adheres to their
enemies, giving them aid and
comfort within the Philippine
Islands or elsewhere, is guilty of
treason, and, upon conviction,
shall suffer death, or, at the discretion of the court, shall be imprisoned at hard labor for not
less than five years and fined not
less tl ii ten thousand dollars."
(Act 292 of the Philippine Commission entitled "An Act defining
the crimes of treason, insurrection, sedition, conspiracies to
commit such crimes, seditious utterances, whether written or
spoken, the formation of secret
political societies, the administering or taking of oaths to commit
crimes, or to prevent the discovering of the same, and the violation of oaths of allegiance, and
prescribing the punishment therefor.") u9
"No person in the Philippine
Islands shall, under the authority
of the United States, be convicted of treason by any tribunal,
civil or military, unless on the
testimony of two witnesses to the
same overt act, or on confession
in open court." (Act of Congress,
March 8, 1902, sec. 9; 32 Stat.
55; U. S. Compiled Statutes
(1913) sec. 3811.)


ing war against them, or in adhering to their enemies, giving
them aid and comfort. No person shall be convicted of treason
unless on the testimony of two
witnesses to the same overt act,
or on confession in open court.
"The Congress shall have
power to declare the punishment
of treason, but no attainder of
treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted." (United States Constitution, art. III, sec. 3.)
"Whoever, owing allegiance to
the United States, levies war
against them or adheres to their
enemies, giving them aid and
comfort within the United States
or elsewhere, is guilty of treason." (U. S. Criminal Code, sec.
1; U. S. Compiled Statutes
(1913), sec. 10165.)
"Whoever is convicted of treason shall suffer death; or, at the
discretion of the court, shall be
imprisoned not less than five
years and fined not less than ten
thousand dollars, to be levied on
and collected out of any or all
of his property, real and personal, of which he was the owner
at the time of committing such
treason, any sale of conveyance
to the contrary notwithstanding;
and every person so convicted of
treason shall, moreover, be incapable of holding any office
under the United States." (U.


489 See further the remaining sixteen sections, as amended, of Act
292, and interpretative decisions of the Supreme Court of the Philippines.




602


PHILIPPINE GOVERNMENT


S. Crim. Code, sec. 2; U. S.
Compiled Statutes (1913), sec.
10166.) 490
Our Insular law defining and punishing treason, insurrection, and sedition is practically a reproduction of sections of the United States Criminal Code-the latter
based on the United States Constitution-and the provisions of the Constitution concerning treason being taken
from the Statute of Treasons, 25 Edw. III. So that
the well-recognized meaning of the terminology used
in the United States and Great Britain is adopted.49 An
actual levying of war against the United States is the
principal ingredient of the definition of treason.49
As to the rule of evidence prescribed for the Philippines by the Act of Congress, conviction for treason can
only be secured on the testimony of two witnesses to the
same overt act or on confession in open court.         The
principal case construing this section naturally held that
the testimony of one witness is insufficient to support a
conviction for the crime of treason-and further that
"the confession there mentioned means a confession of
guilt. The section cannot be extended so as to include
admissions of facts made by him in giving his testimony
after a plea of not guilty, from which admissions of his
guilt can be inferred." 498
490See further sections 3-8, U. S. Crim. Code-sections 10167 -10172 U. S. Compiled Statutes (1913). These sections contain the
words "or in any place subject to the jurisdiction" of the United
States, and so have force in the Philippines. U. S. statute law pertaining to treason is described in U. S. v. Lagnason (1904) 3 Phil.
472.
491 U. S. v. Lagnason, id.
492 Ex parte Bollman (1807) 4 Cranch, 75, 2 L. Ed. 554, and generally 2 Willoughby on the Constitution, pp. 833 et seq.
93 U. S. v. Magtibay (1903) 2 Phil. 703. See also U. S. v. De los
Reyes (1904) 3 Phil. 349.




BASIC PRINCIPLES


603


~ 139. Imprisonment for debt.
Philippines.                 United States.
"That no person shall be im-   (State Constitutions.)
prisoned for debt." (Philippine
Bill, sec. 5, par. 6.)
"That no person shall be imprisoned for debt." (Philippine
Autonomy Act, sec. 3, par. 6.)
The humane prohibition that no person shall be imprisoned for debt is to be found in most State Constitutions."4  As to the Philippines, the inhibition does not
go so far as to apply to taxes; and although now not
generally allowed, the remedies for the collection of taxes
may include arrest, if the law shall so provide. So section 165 of the Internal Revenue Law of 1914 (Act
2339), authorizing imprisonment for delinquency in the
payment of cedula taxes, is not invalid.495 Also, while
the penal laws of the Philippines 496 provide for subsidiary
imprisonment until the fine is paid or the pecuniary liabilities are satisfied, this does not constitute imprisonment for debt. In the case of Freeman v. United States,
in error to the Supreme Court of the Philippines, Mr.
Justice Day delivering the opinion of the United States
Supreme Court said:
"Statutes relieving from imprisonment for debt were
not intended to take away the right to enforce criminal
statutes and punish wrongful embezzlements or conver494See Stimson, Federal and State Constitutions, sec. 80; U. S.
Revised Statutes, sec. 990-U. S. Compiled Statutes (1913) sec.
1636; and Carr v. State (1895) 34 L. R. A. 634, and extensive note
thereunder.
495 Cooley on Taxation, 3d Ed., pp. 21, 847, cited in Report of a
Committee of the Philippine Commission of November 18, 1915, relative to the constitutionality of section 165 of Act 2339.
496 Penal Code, various articles in connection with Act 1732.




604


PHILIPPINE GOVERNMENT


sions of money. It was not the purpose of this class of
legislation to interfere with the enforcement of such penal
statutes, although it provides for the payment of money as
a penalty for the commission of an offense. Such laws
are rather intended to prevent the commitment of debtors
to prison for liabilities arising upon their contracts. McCool v. State (1864) 23 Ind. 127; Musser v. Stewart
(1871) 21 Ohio St. 353; Ex parte Cottrell (1882) 13
Neb. 193, 13 N. W. 174; Re Ebenhack (1877) 17 Kan.
618, 622.
"This general principle does not seem to be controverted by the learned counsel for the plaintiff in error,
and the argument is, that inasmuch as the money adjudged is to go to the creditor, and not into the public
treasury, imprisonment for the non-payment of such sum
is an imprisonment for debt. But we think that an examination of the statutes of the Philippines and the judgment of the supreme court shows that the imposition of
the money penalty was by way of punishment for the
offense committed, and not a requirement to satisfy a
debt contractual in its nature, or be imprisoned in default of payment.
"This situation is not changed because the sentence
provides for a release from the subsidiary imprisonment
upon payment of the money wrongfully converted. The
sentence imposed, nevertheless, includes the requirement
to pay money because of the conviction of the offense.
The requirement that there shall be no imprisonment for
debt was intended to prevent the resort to that remedy
for the collection of contract debts, and not to prevent the
state from imposing a sentence for crime which should
require the restoration of the sum of money wrongfully
converted in violation of a criminal statute. The nonpayment of the money is a condition upon which the
punishment is imposed. State v. Nicholson, 67 Md. 1,
8 Atl. 817.




BASIC PRINCIPLES


605


"We do not think that the sentence and judgment violated the statute providing that no person shall be imprisoned for debt." "
~ 140. Due process of law and equal protection of
the laws.'"


Philippines.
"That no person shall be deprived of life, liberty or property without due process of law.
"In the performance of this
duty the Commission is enjoined
to see that no injustice is done;
to have regard for substantial
right and equity, disregarding
technicalities so far as substantial right permits, and to observe
the following rules: That the
provision of the treaty of Paris
pledging the United States to the
protection of all rights of prope;ty in the Islands, and as well
the principle of our own Government which prohibits the taking
of private property without due
process of law, shall not be violated; that the welfare of the
people of the Islands, which
should be a paramount consideration, shall be attained consistently with this rule of property
rights; that if it becomes necessary for the public interest of the
people of the Islands to dispose
of claims to property which the
Commission finds to be not law

United States.
"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 the laws." (United
States Constitution, fourteenth
amendment, sec. 1, portion.)
Also fifth amendment.


47217 U. S. 539, 544, 545, 54 L. Ed. 874 (1910).
498 See generally McGehee, Due Process of Law; Cooley's Constitutional Limitations, 7th Ed., Ch. XI; Willoughby on the Constitution, Vol. II, Ch. XLVI; 6 R. C. L. pp. 258 et seq. 433 et seq.




606


PHILIPPINE GOVERNMENT


fully acquired and held, disposition shall be made thereof by due
legal procedure, in which there
shall be full opportunity for fair
and impartial hearing and judgment; that if the same public interests require the extinguishment of property rights lawfully
acquired and held, due compensation shall be made out of the
public treasury therefor." (President's Instructions to the Philippine Commission.)
"That no law shall be enacted
in said Islands which shall deprive any person of life, liberty,
or property without due process
of law, or deny to any person
therein the equal protection of
the laws." (Philippine Bill, sec.
5, par. 1.)
"That no law shall be enacted
in said Islands which shall deprive any person of life, liberty,
or property without due process
of law, or deny to any person
therein the equal protection of
the laws." (Philippine Autonomy
Act, sec. 3, par. 1, first sentence.)
The prohibition against depriving any person of life, liberty or property without due process of law, or denying to
any person the equal protection of the laws is not new in
the constitutional history of the English race. Magna
Charta, confirmed on the 19th day of June, 1215, declared that "No freeman shall be taken, or imprisoned, or
disseised, or outlawed, or exiled, or anywise destroyed;
nor shall we go upon him, nor send upon him, but by the
lawful judgment of his. peers or by the law of the
land." 49 Neither was due process of law alien to the
499 Possibly the principle was known before Magna Charta. See
Ochoa v. Hernandez (1913) 230 U. S. 139, 57 L. Ed. 1427.




BASIC PRINCIPLES


607


Roman law. In the United States, the fifth amendment
to the Constitution acts as a limitation on the powers of
the national government and in substance similar provisions in State Constitutions are restraints on the States.
While the primary purpose of the fourteenth amendment
was to secure the full enjoyment of liberty to the colored
race, the provision is not limited to that purpose. In
every way, modern civilized government is in marked
contrast to the ancient and mediaeval in its protection of
the individual against arbitrary governmental intrusion.
Both the organic law and the statute law of the Philippines shelter these basic rights of man. The article is a
restraint on all three departments of our government.
"Person"
is the widest possible term of private law for designating
parties who may be affected by any governmental act.
It means any human being, whether citizen or alien, without regard to any differences or race, color, or nationality.50 It includes corporations legally existing within the
State.,60
"Life, liberty, or property."
To these terms might well be added "the pursuit of
happiness." Be it not forgotten that the Declaration of
Independence commenced with the fundamental proposition that "all men are created equal; that they are endowed by their Creator with certain inalienable rights;
that among these are life, liberty, and the pursuit of
happiness." Pursuit of happiness is protected by the liberty in which all men are guaranteed. In the pursuit of
s00 Yick Wo v. Hopkins (1886) 118 U. S. 356, 30 L. Ed. 220. See
Burgess, Political Science and Constitutional Law, Vol. I, p. 211.
601 Pembina Mining Co. v. Pennsylvania (1888) 125 U. S. 181, 31
L. Ed. 650.




608


PHILIPPINE GOVERNMENT


happiness all vocations, honors, and positions are alike
open to every one; in the protection of these rights all
are equal before the law."
"Life, liberty, or property" are representative and
comprehensive terms intended to cover every right to
which a member of the body politic is entitled under the
law. As has well been said: "The right to life includes
the right of the individual to his body in its completeness
and without dismemberment; the right to liberty, the right
to exercise his faculties and to follow a lawful avocation
for the support of life; the right of property, the right
to acquire, possess, and enjoy it in any way consistent
with the equal rights of others and the just exactions and
demands of the state." 08 In another case, it was said:
"These terms include the right of self-defense, freedom
of speech, religious and political freedom, exemption from
arbitrary arrests, the right freely to buy and sell as others
may. Indeed, they may embrace all our liberties, personal, civil, and political, including the rights to labor,
to contract, to terminate contracts, and to acquire property. None of these liberties and rights can be taken
away, except by due process of law. 2 Story, Const. (5th
Ed.) sec. 1950. The rights of life, liberty, and property
embrace whatever is necessary to secure and effectuate
the enjoyment of those rights." 504 The real meaning
back of the article is not that there shall be no interference
with life, liberty, and property, but that there shall be no
unreasonable or arbitrary interference with these rights.
Plainly, many of the other basic principles which we have
discussed or will discuss hark back to this prohibition.
5026 R. C. L. p. 258; Cummings v. Missouri (1867) 4 Wall. 277,
18 L. Ed. 356; Kalaw, Teorias Constitucionales, Ch. XIV.
03Bertholf v. O'Reilly (1878) 74 N. Y. 509, 515, 30 Am. Rep. 323.
04 Gillespie v. People (1900) 188 Ill. 176, 182, 183, 58 N. E. 1007,
52 L. R. A. 283, 80 Am. St. Rep. 176.




BASIC PRINCIPLES


609


"Life"
needs no definition. It is protected by the Moral and the
Criminal Law.
"Liberty" 5o
has been authoritatively described as "the greatest of all
rights." 506 It means "not only the right of the citizen
to be free from the mere physical restraint of his person,
as by incarceration, but the term is deemed to embrace
the right of the citizen to be free in the enjoyment of all
his faculties; to be free to use them in all lawful ways;
to live and work where he will; to earn his livelihood by
any lawful calling; to pursue any livelihood or avocation;
and for that purpose to enter into all contracts which may
be proper, necessary, and essential to his carrying out to a
successful conclusion the purposes above mentioned." 07
Liberty and license are not synonymous. Apolinario Mabini once said: "Many talk of liberty without understanding it; many believe that if they have liberty they have
complete freedom to do the bad and good alike. Liberty
is freedom to do right and never wrong; it is ever guided
by reason and the upright and honorable conscience of the
individual. The robber is not free, but is the slave of
his own passions, and when we put him in prison we
punish him precisely because he is unwilling to use true
freedom. Liberty does not mean that we shall obey nobody, but commands us to obey those whom we have put
in power and acknowledged as the most fit to guide us,
s06 See Burgess' Political Science and Constitutional Law, Vol. I,
Book 2, Ch. I; Burgess, The Reconciliation of Government with
Liberty.
506 Crowley v. Christensen (1890) 137 U. S. 86, 89, 34 L. Ed. 620,
quoted in Case v. Board of Health (1913) 24 Phil. 250, 281.
7 Allgeyer v. Louisiana (1897) 165 U. S. 578, 41 L. Ed. 832. See
Burgess, Political Science and Constitutional Law, Vol. I, p. 178.
P. I. Govt.-39.




610


PHILIPPINE GOVERNMENT


since in this way we obey our own reason." Liberty,
therefore, does not import "an absolute right in each person to be, at all times and in all circumstances, wholly
freed from restraint. There are manifold restraints to
which every person is necessarily subject for the common
good. On any other basis, organized society could not
exist with safety to its members. Society based on the
rule that each one is a law unto himself would soon be
confronted with disorder and anarchy. Real liberty for
all could not exist under the operation of a principle which
recognizes the right of each individual person to use his
own, whether in respect of his person or his property, regardless of the injury that may be done to others.. There is, of course, a sphere within which
the individual may assert the supremacy of his own will,
and rightfully dispute the authority of any human government,-especially of any free government existing
under a written Constitution, to interfere with the exercise of that will. But it is equally true that in every
well-ordered society charged with the duty of conserving
the safety of its members the rights of the individual in
respect of his liberty may at times, under the pressure of
great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." 50s So a person may lawfully
be deprived of liberty as a punishment for crime, may
be required to appear and testify, may be incarcerated for
mental disability, and may be forced to serve in the
army.509 Midway between the extremes lies the true rule,
as to which the words of Montesquieu in the Spirit of the
Laws have never been improved upon-"Liberty consists
in the ability to do what one ought to desire and in not
being forced to do what one ought not to desire. We


58 Jacobson v. Massachusetts (1905) 197 U. S. 11, 49 L. Ed. 643.
09o 6 R. C. L. p. 265.




BASIC PRINCIPLES


611


must have continually present to our minds the difference
between independence and liberty. Liberty is a right of
doing whatever the laws permit, and if a citizen could do
what they forbid, he would no longer be possessed of
liberty, because all his fellow-citizens would enjoy the
same power." 1'0 Yet at most liberty is a relative term
differing with races and civilizations. The idea of sovereignty as found in the United States is its best guaranty. "Where all power is derived from the people, and
public functionaries at short intervals deposit it at the
feet of the people, to be resumed again only at their own
will, individual fears may be alarmed by the monsters of
imagination, but individual liberty can be in little
danger." 61
"Property."
The right of every man to own property (anything of
an exchangeable value), to use it exclusively for his enjoyment, and to transmit it to others is more abstract
610 See Cooley's Constitutional Limitations, 7th Ed., pp. 483, 484,
and notes. Sir William Blackstone says, personal liberty consists in
the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without
imprisonment or restraint, unless by due course of law. 1 BI. Corn.
134. "Liberty," says Mr. Webster, "is the creature of law, essentially
different from that authorized licentiousness that trespasses on right.
It is a legal and a refined idea, the offspring of high civilization, which
the savage never understood, and never can understand. Liberty
exists in proportion to wholesome restraint; the more restraint on
others to keep off from us, the more liberty we have. It is an error
to suppose that liberty consists in a paucity of laws. If one wants
few laws let him go to Turkey. The Turk enjoys that blessing. The
working of our complex system, full of checks and restraints on legislative, executive, and judicial power, is favorable to liberty and
justice. Those checks and restraints are so many safeguards set
around individual rights and interests. That man is free who is protected from injury." Works, Vol. II, p. 393.
51 Anderson v. Dunn (1821) 6 Wheat. 204, 226, 5 L. Ed. 242.




612


PHILIPPINE GOVERNMENT


than real. The ordinary citizen fondly imagines that over
his little patch of ground he is king. How vain is his
dream! The city may condemn his flower garden for a
park; the State may cut in twain his green pasture with
a highway; and a railroad may in turn tear down his ivy
covered cottage to build a freight depot. On every turn,
the owner is compelled to yield to the general comfort
and protection of the community and to a proper regard
for the rights of others."'2 Even the right to dispose of
his property by will is purely a creature of statute and
within legislative control.518 Property may be constitutionally confiscated for violation of a law.614  It is in the
regulation of property rights that the police power so
512Every man has an abstract right to the exclusive use of his
own property for his own enjoyment in such manner as he shall
choose; but if he should choose to create a nuisance upon it, or to do
anything which would preclude a reasonable enjoyment of adjacent
property, the law would interfere to impose restraints. He is said
to own his private lot to the center of the earth, but he would not
be allowed to excavate it indefinitely, lest his neighbor's lot should
disappear in the excavation. The abstract right to make use of his
own property in his own way is compelled to yield to the general
comfort and protection of the community, and to a proper regard to
relative rights in others. The situation of his property may even be
such that he is compelled to dispose of it, because the law will not
suffer his regular business to be carried on upon it.... The
owner of a lot within the fire limits of a city may be compelled to
part with the property because he is unable to erect a brick or stone
structure upon it, and the local regulations will not permit one of
wood." People v. Salem (1870) 20 Mich. 452, 480-483, 4 Am. Rep.
400. See further Commonwealth v. Alger (1851) 7 Cush. 53; Mugler
v. Kansas (1887) 123 U. S. 623, 31 L. Ed. 205. "The right to use
one's property for the sole purpose of injuring others is not one of
the immediate rights of ownership." Rideout v. Knox (1889) 148
Mass. 368, 372, 373, 19 N. E. 390, 2 L. R A. 81, 12 Am. St. Rep. 560.
618U. S. v. Perkins (1896) 163 U. S. 625, 41 L. Ed. 287; Magoun
v. Illinois Trust and Savings Bank (1898) 170 U. S. 283, 42 L. Ed.
1037.
514U. S. v. Surla (1911) 20 Phil. 163.




BASIC PRINCIPLES


613


often interferes with private prerogative. As one illustration to be found in Philippine judicial records, the proviso of Ordinance 124 of the city of Manila directing
that new buildings "shall abut or face upon a public street
or alley, or on a private street or alley which is officially
approved" was held not to constitute an invasion of private property rights without due process of law.61"
The principle becomes more persistent when private
property is devoted to a public use. The classic statement
of Lord Hale in the Treatise De Portibus Maris was that
when private property "is affected with a public interest,
it ceases to be juris privati only." It is then subject to
public regulation."16 "Common carriers exercise a sort of
public office, and have duties to perform in which the public is interested.  Their business is, therefore, affected
with a public interest, and is subject to public regulation.
Of course such regulations must not have the
effect of depriving an owner of his property without due
process of law, nor of confiscating or appropriating private property without just compensation, nor of limiting
or prescribing irrevocably vested rights or privileges lawfully acquired under a charter or franchise. But aside
from such constitutional limitations, the determination of
the nature and extent of the regulations which should be
prescribed rests in the hands of the legislator." "17 In the
case in which this quotation appears, it was held that
the promulgation and enforcement of a law or regulation requiring Philippine coastwise trading vessels to
make provisions for the transportation of the mails when
tendered does not, in effect, deprive the owners of property without due process of law. In another case it was
515 Fabie v. City of Manila (1912) 21 Phil. 486.
516 Munn v. Illinois (1877) 94 U. S. 113, 24 L. Ed. 77; Villata v.
Stanley (1915) XIV O. G. 170.
517 Villata z. Stanley (1915) XIV O. G. 170, 172, following American decisions.




614


PHILIPPINE GOVERNMENT


held that "the power of the Philippine legislator to prohibit and to penalize all and any unnecessary or unreasonable discriminations by common carriers may be maintained upon the same reasoning which justified the enactment by the Parliament of England and the Congress of
the United States of the...  statutes prohibiting
and penalizing the granting of certain preferences and
discriminations in those countries." 1S
Rates are fixed for public service corporations. In the
first instance, this is a legislative function. The legislature
may either prescribe definitely the tariff of rates or
charges or determine a rule for future observance and
then delegate the exercise of such powers to some administrative board. It is under this doctrine that our Board
of Public Utility Commissioners is lawfully existent and
lawfully performing its duties. The foregoing does not
mean that the property of corporations, even if devoted
to public use, may be confiscated. As we have heretofore
noticed, corporations are persons within the meaning of
the constitutional provisions forbidding the deprivation
of property without due process of law, as well as a denial
of the equal protection of the laws.519 Under a government of law, "the forms of law and the machinery of
government, with all their reach and power, must in their
actual workings stop on the hither side of the unnecessary
and uncompensated taking or destruction of any private
property, legally acquired and legally held." 620 But Act
98 of the Philippine Commission, although construed so
as not to permit a steamship company to elect at will
whether or not it will engage in a particular business, is
not a confiscation of property-a taking without due
518 Fisher v. Yangco Steamship Co. (1915) XIII O. G. 2076, 2081.
s19 Covington & L. Turnpike Road Co. v. Sandford (1896) 164
U. S. 578, 41 L. Ed. 560.
520 Reagan v. Farmers' Loan and Trust Co. (1894) 154 U. S. 362,
399, 38 L. Ed. 1014.




BASIC PRINCIPLES


615


process of law."21 In ascertaining whether there is confiscation, Mr. Justice Hughes in a recent and well-known
case laid down these rules: (1) The basis of calculation
is the "fair value of the property" used for the convenience of the public; (2) the ascertainment of that
value is not controlled by artificial rules. It is not a matter
of formulas, but there must be a reasonable judgment,
having its basis in a proper consideration of all relevant
facts.62'
"Due process of lanw."
The equivalent of the phrase "due process of law,"
according to Lord Coke (2 Inst. 50) is found in the
words "law of the land" in Magna Charta. By "law
of the land," Daniel Webster said in the definition in his
argument before the United States Supreme Court in
the Dartmouth College Case (4 Wheat. 518) and adopted
by that court-"By the law of the land is most clearly
intended the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen
shall hold his life, liberty, property, and immunities under
the protection of the general rules which govern society." 623 The principal and true meaning of the phrase,
the United States Supreme Court has declared in a case
in which the subject is treated exhaustively,62 has never
521 Fisher v. Yangco Steamship Co. (1915) XIII O. G. 2076.
522 Minnesota Rate Cases (1913) 230 U. S. 352, 57 L. Ed. 1511.
628 Quoted and followed by the Supreme Court of the Philippines
in U. S. v. Ling Su Fan (1908) 10 Phil. 104, 110 (affirmed);
Schields v. McMicking (1912) 23 Phil. 535 (reversed); and other
cases.
524 Hurtado v. California (1884) 110 U. S. 516, 28 L. Ed. 232. See
also Jose v. Commander of Philippine Squadron (1910) 16 Phil. 62
(Act 627 barring claims not presented within a specified period constitutes due process of law).




616


PHILIPPINE GOVERNMENT


been more tersely and accurately stated than by Mr.
Justice Johnson in Bank of Columbia v. Okely: "As to
the words from Magna Charta, incorporated into the
Constitution of Maryland, after volumes spoken and
written with a view to their exposition, the good sense
of mankind has at last settled down to this: that they
were intended to secure the individual from the arbitrary
exercise of the powers of government, unrestrained by the
established principles of private right and distributive
justice." 524a In certain cases, we know from our organic
or statutory law exactly in what due process of law consists."25 Outside of this, we must confess that, although
volumes devoted entirely to the subject have been written, the constitutional meaning or value of the phrase
"due process" remains elusive of comprehension.526
A negative analysis brings us closer to the true meaning of the phrase. Due process of law is not a stationary
and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age
and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good,
which regards and preserves these principles of liberty
and justice, must be held to be due process of law." 527
Due process of law is not that the law shall reflect the
wishes of all the inhabitants of the State, but simply,
"first, that there shall be a law prescribed in harmony with
the general powers of the legislative department of the
Government; second, that this law shall be reasonable in
its operation; third, that it shall be enforced according to
the regular methods of procedure prescribed; and fourth,
that it shall be applicable alike to all the citizens of the
524a4 Wheat. 235, 4 L. Ed. 559 (1819).
526 As an example, see Padin v. Humphries (1911) 19 Phil. 254.
56 Twining v. New Jersey (1908) 211 U. S. 78, 53 L. Ed. 97;
Davidson v. New Orleans (1878) 96 U. S. 97, 24 L. Ed. 616.
27 Hurtado v. California (1884) 110 U. S. 516, 28 L. Ed. 232




BASIC PRINCIPLES


617


state or to all of a class." "' Due process of law is not
necessarily judicial process. In a leading case followed
by our Supreme Court, it was said: "Though 'due process
of law' generally implies and includes, actor, reus, judex,
regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings
(cases cited), yet, this is not universally true."     T The
example given in this case was final process against the
body, lands, and goods of public debtors without trial.
A citizen's property may be taken by the government in
payment of taxes without any judicial proceedings whatsoever. A provision of the Internal Revenue Law (sec.
139) reading "No court shall have authority to grant injunction to restrain the collection of any Internal Revenue Tax" does not violate the due process of law clause.'"
Other examples of due process without judicial proceedings, which find local corroboration, are submission to an
administrative board of the final determination of questions of fact or law after a fair hearing, as in customs and
immigration cases, where there can only be an appeal to
the courts for abuse of authority.531 The expulsion of
aliens by the Governor-General of the Philippines is due
process of law.6"2 Due process is not denied by mere
628U. S. v. Ling Su Fan (1908) 10 Phil. 104, 111, affirmed on
appeal to the United States Supreme Court.
29 Den v. Hoboken Land and Improvement Co. (1856) 18 How.
272, 15 L. Ed. 372, followed in Forbes v. Chuoco Tiaco (1910) 16
Phil. 534; Tan Te v. Bell (1914) 27 Phil. 354; U. S. v. Gomez (1915)
XIII O. G. 1628; and other cases.
580 Rafferty v. Churchill (1915) XIV O. G. 383.
531 Hilton v. Merritt (1884) 110 U. S. 97, 28 L. Ed. 83; U. S. ex
rel. Riverside Oil Co. v. Hitchcock (1903) 190 U. S. 316, 47 L. Ed.
1074. See U. S. v. Gomez (1915) XIII O. G. 1628; and of late cases
re Chinese Immigration Loo Sing v. Collector of Customs (1914) 27
Phil. 491; Tan Chin Hin v. Collector of Customs (1914) 27 Phil. 521,
and generally sec. 124 supra.
532 Forbes v. Chuoco Tiaco (1910) 16 Phil. 534, affirmed on appeal




618


PHILIPPINE GOVERNMENT


error of law or fact in a decision of a board or court.538
Due process does not require a right of appeal from a
trial to a superior court.584 Affirmatively speaking, vested
rights must not be disturbed.583
Finally, "in judging what is 'due process of law' respect must be had to the cause and object of the taking,
whether under the taxing power, the power of eminent
domain, or the power of assessment for local improvements, or some of these; and, if found to be suitable or
admissible in the special case, it will be adjudged to be
'due process of law,' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due
process of law.' " 86   Therefore, what is due process of
law depends on circumstances and varies with the subjectmatter and the necessities of the situation.587
"Equal protection of the laws."
The equal protection of the laws, the United States
Supreme Court has sententiously observed, "is a pledge
of the protection of equal laws." "8 It means "that no
to the United States Supreme Court as Tiaco v. Forbes (1913) 228
U. S. 549, 57 L. Ed. 960. See Act 2113 of the Philippine Legislature
fixing due process of law in cases of expulsion.
as In re Converse (1891) 137 U. S. 624, 34 L. Ed. 796.
34 McKane v. Durston (1894) 153 U. S. 684, 38 L. Ed. 867; Pittsburgh etc. R. Co. z'. Backus (1894) 154 U. S. 421, 38 L. Ed. 1031;
U. S. v. Gomez (1915) XIII O. G. 1628.
a65 Cooley's Constitutional Limitations, 7th Ed., pp. 508 et seq.
536 Davidson v. New Orleans (1878) 96 U. S. 97, 24 L. Ed. 616;
Hagar v. Reclamation Dist. No. 108 (1884) 111 U. S. 701, 28 L. Ed.
569.
a7 Moyer v. Peabody (1909) 212 U. S. 78, 53 L. Ed. 410, followed
in Forbes v. Chuoco Tiaco (1910) 16 Phil. 534.
88 Yick Wo v. Hopkins (1886) 118 U. S. 356, 30 L. Ed. 220. See
Kalaw, Teorias Constitucionales, Ch. XIV; and 5 R. C. L. "Civil
Rights" pp. 573 et seq. on facts and statutes which concern the
United States but not necessarily the Philippines.




I


BASIC PRINCIPLES


619


person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons
or other classes in the same place and under like circumstances." 69 What may be regarded as a denial of the
equal protection of the laws is a question not always easily
determined."6
The guaranty does not require territorial uniformity."
Class legislation discriminating against some and favoring
others is prohibited. But classification on a reasonable
basis and not made arbitrarily is permitted."      The rules
governing classification are briefly as follows: It must
be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it
must not be limited to existing conditions only and must
apply equally to each member of the class.6" Nevertheless, "while recognizing to the full extent the impossibility
639 Missouri v. Lewis (1880) 101 U. S. 22, 25 L. Ed. 989.
540 Connolly v. Union Sewer Pipe Co. (1902) 184 U. S. 540, 46 L.
Ed. 679.
541 Ocampo v. U. S. (1914) 234 U. S. 91, 58 L. Ed. 1231, following
Missouri v. Lewis (1880) 101 U. S. 22, 30, 25 L. Ed. 989.
542 "It is elementary that the contention (denial of the equal protection of the laws) is to be tested by considering whether there is a
basis for the classification made by the statute." Finley v. California
(1911) 222 U. S. 28, 56 L. Ed. 75. "Such classification can not be
made arbitrarily." Gulf, C. & S. F. Ry. Co. v. Ellis (1897) 165 U. S.
150, 41 L. Ed. 666.
543 Borgnis v. Falk Co. (1911) 147 Wis. 327, 353, 37 L. R. A. (N.
S.) 489. "1. The equal-protection clause of the fourteenth amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A
classification having some reasonable basis does not offend against
that clause merely because it is not made with mathematical nicety,
or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts
reasonably can be conceived that would sustain it, the existence of
that state of facts at the time the law was enacted must be assumed.




620


PHILIPPINE GOVERNMENT


of an imposition of duties and obligations mathematically
equal upon all, and also recognizing the right of classification of industries and occupations, we must nevertheless
always remember that the equal protection of the laws is
guaranteed, and that such equal protection is denied when
upon one of two parties engaged in the same kind of
business and under the same conditions burdens are cast
which are not cast upon the other." 56
~ 141. Slavery, involuntary servitude, and peonage.


Philippines.
"That neither slavery nor involuntary servitude shall exist
except as a punishment for
crime." (President's Instructions
to the Philippine Commission.)
"That neither slavery nor involuntary servitude, except as a
punishment for crime whereof
the party shall have been duly
convicted, shall exist in said
Islands." Philippine Bill, sec.
5, par. 12.)
"That it shall be unlawful for
any corporation organized under
this Act, or for any person, company, or corporation receiving


United States.
"~ 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof
the party shall have been duly
convicted, shall exist within the
United States, or any place subject to their jurisdiction.
"~ 2. Congress shall have power to enforce this article by
appropriate legislation." (United
States  Constitution, thirteenth
amendment.)
"~ 10441. (Crim. Code, Sec.
268.) Kidnapping; punishment
for.
"Whoever kidnaps or carries


4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis,
but is essentially arbitrary. Bachtel v. Wilson, 204 U. S. 36, 41, 27
Sup. Ct. 243, 51 L. Ed. 357, 359; Louisville & N. R. Co. v. Melton,
218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921; Ozan Lumber Co. v.
Union County Nat. Bank, 207 U. S. 251, 256, 28 Sup. Ct. 89, 52 L.
Ed. 195, 197; Munn v. Illinois, 94 U. S. 113, 132, 24 L. Ed. 77, 86;
Henderson Bridge Co. v. Henderson, 173 U. S. 592, 615, 19 Sup. Ct.
553, 43 L. Ed. 823, 831." Lindsley v. Natural Carbonic Gas Co.
(1911) 220 U. S. 61, 79, 55 L. Ed. 369.
64 Cotting v. Kansas City Stock Yards Co. (1901) 183 U. S. 79,
103, 46 L. Ed. 92.




I


BASIC PRINCIPLES


621


any grant, franchise, or concession from the Government of
said Islands, to use, employ, or
contract for the labor of persons
claimed or alleged to be held in
involuntary servitude; and any
person, company, or corporation
so violating the provisions of this
Act shall forfeit all charters,
grants, franchises and concessions for doing business in said
Islands, and in addition shall be
deemed guilty of an offense, and
shall be punished by a fine of not
less than ten thousand dollars."
(Philippine Bill, sec. 74, last proviso.)
"That slavery shall not exist in
said Islands; nor shall involuntary servitude exist therein except as a punishment for crime
whereof the party shall have
been duly convicted. (Philippine
Autonomy Act, sec. 3, par. 12.)
"That it shall be unlawful for
any corporation organized under
this Act, or for any person, company, or corporation receiving
any grant, franchise, or concession from the government of said
Islands, to use, employ, or contract for the labor of persons
held in involuntary servitude;
and any person, company, or corporation so violating the provisions of this Act shall forfeit all
charters, grants, or franchises for
doing business in said Islands,
in an action or proceeding
brought for that purpose in any
court of competent jurisdiction
by any officer of the Philippine
Government, or on the complaint


away any other person, with the
intent that such other person be
sold into involuntary servitude,
or held as a slave; or who entices, persuades, or induces any
other person to go on board any
vessel or to any other place with
the intent that he may be made
or held as a slave, or sent out of
the country to be so made or
held; or who in any way knowingly aids in causing any other
person to be held, sold, or carried away to be held or sold as a
slave, shall be fined not more
than five thousand dollars, or imprisoned not more than five
years, or both.
"~ 10442. (Crim. Code, sec.
269.) Holding or returning persons to peonage; punishment for.
"Whoever holds, arrests, returns, or causes to be held, arrested, or returned, or in any
manner aids in the arrest or return of any person to a condition of peonage, shall be fined not
more than five thousand dollars,
or imprisoned not more than five
years, or both.
"~ 10433. (Crim. Code, sec.
270.)  Obstructing enforcement
of preceding section.
"Whoever obstructs, or attempts to obstruct, or in any way
interferes with or prevents the
enforcement of the section last
preceding, shall be liable to the
penalties therein prescribed.
"~ 10444.  (Crim. Code, sec.
271.) Bringing kidnaped person
into United States, etc.; punishment for.




622


PHILIPPINE GOVERNMENT


of any citizen of the Philippines,
under such regulations and rules
as the Philippine Legislature
shall prescribe, and in addition
shall be deemed guilty of an offense, and shall be punished by a
fine of not more than $10,000."
(Philippine Autonomy Act, sec.
28, last proviso.)


"Whoever shall knowingly and
willfully bring into the United
States or any place subject to the
jurisdiction thereof, any person
inveigled or forcibly kidnaped in
any other country, with intent to
hold such person so inveigled or
kidnaped in confinement or to
any involuntary servitude; or
whoever shall knowingly and
willfully sell, or cause to be sold,
into any condition of involuntary servitude, any other person
for any term whatever; or whoever shall knowingly and willfully hold to involuntary servitude any person so brought or
sold, shall be fined not more than
five thousand dollars and imprisoned not more than five
years." (U. S. Crim. Code, secs.
268-271-U. S. Compiled Statutes (1913) secs. 10441-10444 -adopted and modified for the
Philippines by Act 2300 of the
Philippine Legislature.)645


The thirteenth amendment to the United States Constitution and Congressional legislation to enforce this
article probably have force in the Philippine Islands."5
However this may be is not now important, for similar
constitutional provisions have been expressly extended to
the Islands. The Supreme Court of the Philippines, construing this prohibition of the Philippine Bill in the case
of United States v. Cabanag, held that, while it operates
to nullify any agreement in contravention of it, suppletory
b4 See generally Title 69 (A), Ch. 10, The Slave Trade and Peonage, U. S. Compiled Statutes (1913).
546 Note italicized words in the thirteenth amendment and in the
law quoted under this section heading. See also sec. 104 supra.






BASIC PRINCIPLES


623


legislation is required to give the prohibition criminal effect. Mr. Justice Tracey in the course of the opinion
said:
"This constitutional provision is self-acting whenever
the nature of a case permits and any law or contract providing for the servitude of a person against his will is
forbidden and is void. For two obvious reasons, however, it fails to reach the facts before us:
"First. The employment or custody of a minor with
the consent or sufferance of the parents or guardian, although against the child's own will, can not be considered involuntary servitude.
"Second. We are dealing not with a civil remedy but
with a criminal charge, in relation to which the Bill of
Rights defines no crime and provides no punishment. Its
effects cannot be carried into the realm of criminal law
without an act of the legislature.
"It is not unnatural that existing penal laws furnish no
punishment for involuntary servitude as a specific crime.
In the Kingdoms of the Spanish Peninsula, even in remote times, slavery appears to have taken but a surface
root and to have been speedily cast out, the institution not
having been known therein for centuries. It is only in
relation to Spain's possessions in the American Indies
that we find regulations in respect to slavery. In general they do not apply in their terms to the Philippine
Islands where the ownership of man by his fellow-man,
wherever it existed, steadily disappeared as Christianity
advanced. Among the savage tribes in remote parts, such
customs as flourished were not the subject of legislation
but were left to be dealt with by religious and civilizing
influences. Such of the Spanish laws as touched the subject were ever humane and radical. In defining slavery,
law 1, title 21 of the fourth Partida calls it 'a thing
against the law of nature;' and rule 2, title 34 of the
seventh Partida says: 'It is a thing which all men natur



624


PHILIPPINE GOVERNMENT


ally abhor.' These were the sentiments of the thirteenth
century." "7
An early Act of the Legislative Council of the Moro
Province of September 24, 1903, defined the crimes of
slave-holding and slave-hunting and prescribed their
punishment. Act 2071 of the Philippine Commission,
enacted August 7, 1911, constituted further ancillary
legislation for the prohibiting and punishing of slavery,
involuntary servitude, and peonage in the Mountain Province and the Provinces of Nueva, Vizcaya and Agusan.
Act 2300 of the Philippine Legislature of November 28,
1913, covered the subject more comprehensively by confirming existing Spanish legislation applicable to the Philippine Islands and by adopting with necessary modifications sections 268, 269, 270, and 271 of the United States
Criminal Code, above quoted. Act 2399 of the Philippine Commission extended the provisions of Act 2300 to
the territory inhabited by Moros and other non-Christians. Moreover, under the civil law as held in De los
Reyes v. Alojado,648 per Torres J. domestic services are
always to be remunerated, and any agreement made in
connection with a loan of money, whereby it is stipulated
that because of such loan, domestic service shall be
gratuitous, is contrary to law and good morals. As a
resultant, the Philippine Islands now have a combined
Spanish-American law, mostly derived from the latter
source, which rigorously punishes slavery, involuntary
servitude, and peonage.
Going back then to where we began, we find the American legislation on the subject held to be a valid exercise
of the powers granted to Congress.549 Three things are
47 8 Phil. 64, 68, 69 (1907). See also Op. Atty. Gen. P. I. Nov. 19,
1913.
548 16 Phil. 499 (1910); Arts. 1255, 1585, etc., Civil Code.
49 Clyatt v. U. S. (1905) 197 U. S. 207, 49 L. Ed. 726; U. S. v.
McClellan (1904) 127 Fed. 971.






BASIC PRINCIPIES


625


denounced and penalized-slavery, involuntary servitude,
and peonage. Slavery is "the state of entire subjection of
one person to the will of another."      Servitude is "the
state of voluntary or compulsory subjection to a master."
In the opinion of the United States Supreme Court from
which these definitions are taken, it was said that "all understand by these terms a condition of enforced compulsory service of one to another." b0 Peonage "is a status
or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness." 61 The denunciation reaches every race and
every individual. But the prohibition and its ancillary
law only have to do with slavery and its incidents.b"6
Freedom, not social or political equality, was given. However, many unsuccessful attempts have been made to extend the meaning, as for example, so as to include laws
denying equal accommodations.658 It would, moreover,
be a perversion of the law to attempt to apply it to an ordinary case of restraint of personal liberty, to the obligation of a child to its parents, or of an apprentice to his
master, and to other extreme cases.554  Nor does the prohibition cover the situation of seamen, although their
contracts provide for compulsory fulfillment.b55  The compulsory requirement of labor upon the public highways to
550 Hodges v. U. S. (1906) 203 U. S. 1, 16, 51 L. Ed. 65, following
Webster's Dictionary.
551 Clyatt v. U. S. id; U. S. v. Cole (1907) 153 Fed. 801, 805. "One
fact existed universally; all were indebted to their master. This was
the cord by which they seemed bound to their master's service."
Jaremillo v. Romero (1857) 1 N. Mex. 190, 194.
552 Civil Rights Cases (1883) 109 U. S. 3, 27 L. Ed. 837, explains
the province of the 13th and 14th amendments.
558 Civil Rights Cases id.  See Slaughterhouse Cases (1873) 16
Wall. 36, 21 L. Ed. 394, and Plessy v. Ferguson (1896) 163 U. S. 537,
41 L. Ed. 256.
M U. S. v. Eberhart (1899) 127 Fed. 252, and other cases.
5S5 Robertson v. Baldwin (1897) 165 U. S. 275, 41 L. Ed. 715.
P. I. Govt. 40.




626


PHILIPPINE GOVERNMENT


be found in American and Philippine law does not violate the prohibition against involuntary servitude. "There
are certain services which may be commanded of every
citizen by his government, and obedience enforced
thereto." 556 The prohibition, finally, safeguards the freedom of labor "upon which alone can enduring prosperity
be based." 657
~ 142. Freedom of speech and press; assembly and
petition.558


Philippines.
"That no law shall be passed
abridging the freedom of speech
or of the press or of the rights
of the people to peaceably assemble and petition the Government
for a redress of grievances."
(President's Instructions to the
Philippine Commission.)
"That no law shall be passed
abridging the freedom of speech
or of the press, or the right of
the people peaceably to assemble


United States.
"Congress shall make no law... 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."  (United States Constitution, first amendment, portion.)
(State Constitutions.)559


56 In re Dassler (1886) 35 Kan. 678, 12 Pac. 130.
557 "We conclude that section 4730, as amended, of the Code of
Alabama, insofar as it makes the refusal or failure to perform the act
or service, without refunding the money or paying for the property
received, prima facie evidence of the commission or the crime which
the section defines, is in conflict with the thirteenth amendment, and
the legislation authorized by that amendment, and is therefore invalid." Bailey v. Alabama (1911) 219 U. S. 219, 55 L. Ed. 191. Act
2098 of the Philippine Legislature is entitled "An Act relating to contracts of personal service and advances thereunder, and providing
punishment for certain offenses connected therewith." The constitutionality of this Act is now before the Supreme Court for decision.
568 See generally Cooley's Constitutional Limitations, 7th Ed., Ch.
12, and pp. 497, 498; 6 R. C. L. pp. 254-258; Newel on Slander and
Libel.
559 Substance given in Cooley's Constitutional Limitations, 7th Ed.,
pp. 596-599, note.




BASIC PRINCIPLES


627


and petition the Government for
redress of grievances." (Philippine Bill, sec. 5, par. 13.)
"That no law shall be passed
abridging the freedom of speech
or of the press, or the right of
the people peaceably to assemble
and petition the Government for
redress of grievances." (Philippine Autonomy Act, sec. 3, par.
13.)
Freedom of speech and press.
It was Wendell Phillips who asked regarding free
speech: "Who can adequately tell the sacredness and
value of free speech? Who can fitly describe the enormity of the crime of its violation? Free speech, at once
the instrument and the guaranty and the bright consummate flower of all liberty." It was Judge Cooley who
said of the newspaper: "The newspaper is 
one of the chief means for the education of the people.
The highest and the lowest in the scale of intelligence
resort to its columns for information; it is read by those
who read nothing else, and the best minds of the age make
it the medium of communication with each other on the
highest and most abstruse subjects. Upon politics it may
be said to be the chief educator of the people; its influence is potent in every legislative body; it gives tone and
direction to public sentiment on each important subject
as it arises; and no administration in any free country
ventures to overlook or disregard an element so prevading
in its influence, and withal so powerful." "60 It was Lord
Bryce who wrote of public opinion: "Towering over
Presidents and State governors, over Congress and State
legislatures, over conventions and the vast machinery of
party, public opinion stands out, in the United States, as


660 Cooley's Constitutional Limitations, 7th Ed., p. 641.




628


PHILIPPINE GOVERNMENT


the great source of power, the master of servants who
tremble before it." 56 Who now knowing the rising force
of public opinion in these Islands and the influence of an
unfettered press, both privileges long desired under Spain,
can doubt that in these respects the Philippines will emulate the United States and other enlightened countries and
lend reflected glory to the words of Phillips, Cooley, and
Bryce? 662
The main purpose of the first amendment to the United
States Constitution has been declared to be "to prevent all
such previous restraints upon publications as had been
practised by other governments." 563 No new rights were
created. Existing rights were only recognized with a
further provision that they shall not be abridged or violated. "The constitutional liberty of speech and of the
press," as Judge Cooley says he understands it, "implies
a right to freely utter and publish whatever the citizen
may please, and to be protected against any responsibility
for so doing, except so far as such publications, from
their blasphemy, obscenity, or scandalous character, may
be a public offence, or as by their falsehood and malice
they may injuriously affect the standing, reputation, or
pecuniary interests of individuals." 564
The freedom of speech and of the press is not the
equivalent of unbridled license to say or print anything.
661 Bryce, The American Commonwealth, new and revised edition,
Vol. II, Chs. 76-83 at p. 267, quoted in Duarte v. Dade (1915) XIII
O. G. 2006.
562 But in the dissenting opinion of Carson J. in U. S. v. Bustos
13 Phil. 690, 715, written in 1909, appears the following: "in these
Islands... where, more especially in the provinces, there is no
intelligent public opinion with its salutary and restraining influence
on local officials."
56S Patterson v. Colorado (1907) 205 U. S. 454, 51 L. Ed. 879;
Commonwealth v. Blanding (1825) 3 Pick. (Mass.) 304, 15 Am. Dec.
214.
56 Cooley's Constitutional Limitations, 7th Ed. pp. 604, 605.




BASIC PRINCIPLES


629


The proverb runs: "A good name is rather to be desired
than great riches, and loving favor than silver and gold."
The lines of the poem are:
"Who steals my purse steals trash;
"But he that filches from me my good name,
"Robs me of that which not enriches him
"And makes me poor indeed." 6"
The sound and authoritative legal principle is the liberty of speech and press, not its licentiousness.566 So the
constitutional provisions do not permit the publication of
libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation.57
Certain restrictions are necessary in order to circumscribe
the golden medium between the one extreme of a despotism crushing out free speech and the other extreme of
calumny and slander. Our constitutional provision guarantees the right on the one hand; our libel law (Act 277)
on the other is perhaps overly stringent.    But the provisions of section 5 of Act 292, defining the crime of sedition, must not be interpreted so as to abridge the freedom
of speech and the right of the people peaceably to assemble and petition the Government for redress of grievances.6"
The public acts of public men may lawfully be made
65 Quoted by Judge Jenkins in Worcester v. Ocampo (1912) 22
Phil. 42, 73. In the same case the Supreme Court quotes from Judge
Jenkins, as follows: "The enjoyment of a private reputation is as
much a constitutional right as the possession of life, liberty, or property. It is one of those rights necessary to human society, that underlie the whole scheme of human civilization.  The respect and
esteem of his fellows are among the highest rewards of a wellspent
life vouchsafed to man in this existence. The hope of it is the inspiration of youth and its possession is a solace in later years." p. 98.
See also Perfecto v. Contreras (1914) 28 Phil. 538.
666 Commonwealth v. Blanding (1825) 3 Pick. (Mass.) 304, 15 Am.
Dec. 214.
67 Robertson v. Baldwin (1897) 165 U. S. 275, 326, 41 L. Ed. 715.
s" U. S. v. Apurado (1907) 7 Phil. 422, syllabus.




630


PHILIPPINE GOVERNMENT


the subject of comment and criticism, their fitness for office discussed, and their actions, character, and motives
challenged, when so made in good faith should be and
is privileged.'" For example, the case of United States
v. Galeza 70 held that it is the right and duty of a citizen
to make a complaint of any misconduct on the part of
public officials which comes to his notice to those charged
with supervision over them. Such a communication
is qualifiedly privileged and the author is not guilty of
libel, even though the charges contained therein are
not substantiated upon investigation, unless it be shown
that the charges were made maliciously and without any
reasonable grounds for believing them    to be true. Such
a complaint should be addressed solely to some official
having jurisdiction to inquire into the charges or power
to redress the grievance or some duty to perform or interest in connection therewith.     However, there must
be a limit to irresponsible charges against public men.
In a number of cases, two of which we quote from, our
Supreme Court has said:
"The interests of society require that immunity should
be granted to the discussion of public affairs and that
all acts and matters of a public nature may be freely pub569U. S. v. Sedano (1909) 14 Phil. 338; Cooley's Constitutional
Limitations, pp. 616-628.
670XIII O. G. 1540 (1915). The splendid dissenting opinion of
Carson J. in U. S. v. Bustos (1909) 13 Phil. 690, 715, had previously
given the rule, as follows: "A conditional or qualified privilege exists
in these Islands as to such communications, with no greater restrictions or limitations attached thereto than have been placed upon the
like privilege in England and the United States. The limitations and
restrictions uniformly placed on the privilege in those jurisdictions
are, first, that such complaints must be made to a functionary having
authority to redress the grievances complained of; and, second, that
they must be made in good faith, and must not be actuated by actual
or express malice." See further Newell on Slander and Libel, 3d
Ed., secs. 600, 601.




BASIC PRINCII'PES


631


lished with fitting comments and strictures; but they do
not require that the right to criticize the public acts of
public officers shall embrace the right to base such criticisms upon false statement of fact, or to attack the private
character of the officer, or to falsely impute to him malfeasance or misconduct in office." 571
"Men have the right to attack, rightly or wrongly, the
policy of a public official with every argument whic ability can find or ingenuity invent. They may show, by
argument good or bad, such policy to be injurious to the
individual and to society. They may demonstrate, by
logic true or false, that it is destructive of human freedom and will result in the overtlirow of the nation itself.
But the law does not permit men falsely to impeach the
motives, attack the honesty, blacken the virtue, or injure
the reputation of that official.
"Men may argue, but they may not traduce. Men may
differ, but they may not, for that reason, falsely charge
dishonesty.  Men may look at policies from    different
points of view and see them in different lights, but they
may not, on that account, falsely charge criminality, immorality, lack of virtue, bad motives, evil intentions, or
corrupt heart or mind. Men may falsely charge that policies are bad, but they cannot falsely charge that men are
bad." 672
Courts are subject to the same criticism as other people,
after a case is finished. But if a court regard a publication concerning a matter of law pending before it as tending to interfere with the course of justice by premature
statement, argument, or intimidation, it may punish it
as a contempt.73 So an attorney may criticize the courts
so long as his criticisms are made in good faith and in
respectful language. But if he falsely, purposely, and
671 Carson J. in U. S. v. Sedano (1909) 14 Phil. 338, 343.
672 Moreland J. in U. S. v. Contreras (1912) 23 Phil. 513, 516, 517.
673 Patterson v. Colorado (1907) 205 U. S. 454, 51 L. Ed. 879.




632


PHILIPPINE GOVERNMENT


maliciously attack the integrity of the courts and the
judges thereof with a design to willfully, purposely, and
maliciously misrepresent the courts and bring them into
disrepute, the attorney violates his duties and obligations
and may be disbarred."74 The rule as to publication of
judicial proceedings in newspapers, is said by the United
States Supreme Court in a case coming from the Philippines, to be nowhere better stated than by Judge Cooley,
namely: "It seems to be settled that a fair and impartial
account of judicial proceedings, which have not been ex
parte, but in the hearing of both parties, is, generally
speaking, a justifiable publication. But it is said that if
a party is to be allowed to publish what passes in a court
of justice, he must publish the whole case, and not merely
state the conclusion which he himself draws from the
evidence. A plea that the supposed libel was, in substance, a true account and report of a trial has been held
bad; and a statement of the circumstances of a trial as
from counsel in the case has been held not privileged.
The report must also be strictly confined to the actual
proceedings in court, and must contain no defamatory
observations or comments from any quarter whatsoever,
in addition to what forms strictly and properly the legal
proceedings." 676 Publishing an article based upon a complaint filed in a Court of First Instance before any judicial action is taken thereon, is not privileged as a report
of a judicial proceeding.675"
There are a number of cases of absolute or qualified
privilege arising because of the occasion on which made.
574 State Bar Commission v. Sullivan (1912) 35 Okla. 745, 131 Pac.
703.
576 Cooley's Constitutional Limitations, 7th. Ed., p. 637 quoted by
Day J. in Dorr v. U. S. (1904) 195 U. S. 138, 11 Phil. 706. See also
Act 277, sec. 7.
575a Choa Tek Hee v. Philippine Publishing Co. (1916) XIV O. G.
1104.




BASIC PRINCIPLES


633


Parliamentary freedom    is one.'76  Others protect witnesses giving evidence in the course of judicial proceedings, executives for official utterances, judges of courts
while acting within the limits of their jurisdiction, parties
and counsel to a cause, and there are additional instances
named in the text-books.577
Assembly and petition.
Almost the only general discussion of this subject by
the United States Supreme Court is found in the case
of United States v. Cruikshank in which Mr. Chief Justice
Waite said:
"The right of the people peaceably to assemble for
lawful purposes existed long before the adoption of the
Constitution of the United States.    In fact, it is and
always has been one of the attributes of citizenship under
a free government.    It 'derives its source,' to use the
language of Chief Justice Marshall, in Gibbons v. Ogden,
9 Wheat. 211, 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is
found wherever civilization exists. It was not, therefore,
a right granted to the people by the Constitution. The
Government of the United States, when established, found
it in existence, with the obligation on the part of the
States to afford it protection.
"The very idea of a government, republican in form,
implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to
petition for a redress of grievances." 678
676 U. S. Constitution, Art. 1, sec. 6; Philippine Autonomy Act,
sec. 18; Election Law (Act 1582) sec. 5; Kilbourn v. Thompson
(1881) 103 U. S. 168, 26 L. Ed. 377; Coffin v. Coffin (1808) 4 Mass.
1, 3 Am. Dec. 189. See sec. 120 supra.
7 Cooley's Constitutional Limitations, 7th Ed., pp. 629-633; 25
Cyc. pp. 375-412.
78 92 U. S. 542, 23 L. Ed. 588 (1876). See of the State decisions




634


PHILIPPINE GOVERNMENT


The right of assembly and petition results from       the
very nature and structure of republican institutions.579
Lieber says: "It may right many a wrong, and the deprivation of it would at once be felt by every freeman
as a degradation. The right of petitioning is indeed a
necessary consequence of the right of free speech and (leliberation,-a simple, primitive, and natural right. As
a privilege it is not even denied the creature in addressing
the Deity." 680  The right is of most importance for political purposes and as a means to redress or present
grievances.   Assembly is subject to reasonable regulations by law.'58 But a meeting of laborers merely to demand an increase in wages is not unlawful.582 The scope
of the right of petition is part of the larger right of freedom of speech and will be found discussed in that connection. The records of the Philippine Legislature disclose
that petitions are frequently made use of by the inhabitants of the Islands.
~ 143. Religious liberty.
Philippines.                  United States.
"The inhabitants of the terri-  "No religious test shall ever be
tories over which Spain relin-  required as a qualification to any
quishes or cedes her sovereignty  office or public trust under the
shall be secured in the free exer-  United States." (United States
cise of their religion." (Treaty of  Constitution, art. 6, par. 3, last
Paris, art. X.)                portion.)
"That no law shall be made re-  "Congress shall make no law
specting an establishment of re-  respecting an establishment of religion or prohibiting the free ex-  ligion, or prohibiting the free exCommonwealth v. Abrahams (1892) 156 Mass. 57, 30 N. E. 79;
State ex rel. Ragan v. Junkin (1909) 85 Neb. 1, 122 N. W. 473, 23
L. R. A. (N. S.); State ex rel. Van Alstine v. Frear (1910) 142 Wis.
320, 336-339, 125 N. W. 961, 20 Ann. Cas. 633.
679 Story on the Constitution, sec. 1894.
580 Civil Liberty and Self Government, Ch. 12.
581 Commonwealth z. Abrahams (1892) 156 Mass. 57, 30 N. E. 79.
682  Op. Atty. Gen. Porto Rico 124.




BASIC PRINCIPLES


635


ercise thereof, and that the free
exercise and enjoyment of religious profession and worship
without discrimination or preference shall forever be allowed.... That no form of religion
and no minister of religion shall
be forced upon any community
or upon any citizen of the
Islands; that, upon the other
hand, no minister of religion
shall be interfered with or molested in following his calling,
and that the separation between
state and church shall be real,
entire and absolute." (President's
Instructions to the Philippine
Commission.)
"That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed."
(Philippine Bill, sec. 5, par. 14.)
"That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed;
and no religious test shall be required for the exercise of civil or
political rights. No public money
or property shall ever be appropriated, applied, donated, or used,
directly or indirectly, for the use,
benefit, or support of any sect,
church, denomination, sectarian


institution, or system of religion,
ercise thereof." (United States
Constitution, First Amendment,
to first semicolon.)




636


PHILIPPINE GOVERNMENT


or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher
or dignitary as such." (Philippine Autonomy Act, sec. 3, par.
14.) 
American Constitutions have established religious toleration and religious equality. Church and State are separate. One can worship his Maker according to the
dictates of his conscience; and one is free not to worship
at all. One sect is not favored by the State over any other
sect.
Mr. Justice Miller of the United States Supreme Court
in two cases explained the scope of the constitutional provisions against restraint of religious freedom and the restrictions which are legally permissible. In Watson v.
Hones he said: "In this country the full and free right
to entertain any religious belief, to practice any religious
principle, and to teach any religious doctrine which does
not violate the laws of morality and property and which
does not infringe personal rights, is conceded to all. The
law knows no heresy, and is committed to the support of
no dogma, the establishment of no sect." 588 Again, in
Davis v. Beason he said that the first amendment to the
Constitution "was intended to allow everyone under the
jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties
they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal
rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of
any sect.... It was never intended or supposed
that the Amendment could be invoked as a protection


88 13 Wall 679, 728, 20 L. Ed. 666 (1872).




BASIC PRINCIPLES


637


against legislation for the punishment of acts inimical to
the peace, good order and morals of society. With man's
relations to his Maker and the obligations he may think
they impose, and the manner in which an expression shall
be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of
society, designed to secure its peace and prosperity, and
the morals of its people, are not interfered with." 58
Judge Cooley summarizes those things which are not lawful under any of the American Constitutions thus:          1.
Any law respecting an establishment of religion; 2. Compulsory support by taxation or otherwise of religious instruction; 3. Compulsory attendance upon religious worship; 4. Restraint upon the free exercise of religion
according to the dictates of the conscience; 5. Restraint
upon the expression of religious belief.'85 But there are no
prohibitions against the solemn recognition of a Supreme
84 133 U. S. 333, 342, 33 L. Ed. 637 (1889). "Mr. Jefferson, in
reply to an address to him by the committee of the Danbury Baptist
Association, 8 Jeff. Works, 113, took occasion to say: 'Believing with
you that religion is a matter which lies solely between man and his
God; that he owes account to none other for his faith or his worship;
that the legislative powers of the Government reach actions only, and
not opinions, I contemplate with sovereign reverence that act of the
whole American people which declared that their Legislature should
make no law respecting an establishment of religion or prohibiting
the free exercise thereof," thus building a wall of separation between
Church and State. Adhering to this expression of the supreme will
of the Nation in behalf of the rights of conscience, I shall see, with
sincere satisfaction, the progress of those sentiments which tend to
restore man to all his natural rights, convinced he has no natural
right in opposition to his social duties.' Coming as this does from an
acknowledged leader of the advocates of the measure, it may be
accepted almost as an authoritative declaration of the scope and
effect of the amendment thus secured. Congress was deprived of all
legislative power over mere opinion, but was left free to reach actions
which were in violation of social duties or subversive of good order."
Reynolds v. U. S. (1878) 98 U. S. 145, 164, 25 L. Ed. 244.
685 Cooley's Constitutional Limitations, 7th Ed., pp. 663-665.




638


PHILIPPINE GOVERNMENT


Being. Blasphemy is punished as a crime. The prevailing worship is judicially recognized as being Christianity.586 Sunday laws are upheld.587 Church property can
be exempted from taxation. And there are other qualifying rules.688
These principles expressly ratified in four documents
now apply in the Philippines. Our Supreme Court has
said that: "The change of sovereignty and the enactment
of the fourteenth paragraph of section 5 of the Philip586 Holy Trinity Church v. U. S. (1892) 143 U. S. 457, 36 L. Ed.
226; Vidal v. Girard's Executors (1844) 2 How. 127, 198, 11 L. Ed.
205.
587 Laws forbidding labor on Sunday, save in emergencies, are
everywhere upheld. Hennington v. Georgia (1896) 163 U. S. 299, 41
L. Ed. 166; Petit v. Minnesota (1900) 177 U. S. 164, 44 L. Ed. 716.
588 Carl Zollman, X Illinois Law Review, Oct. 1915, pp. 190, 208,
sums up religious liberty in American law, as follows: "The American citizen is protected in his religious liberty against any act of the
Federal government by the United States constitution and against
any act of his state government by his State constitution. Under both
he is entirely free to formulate any opinion whatsoever in regard
to religion, to practice and teach it to others, provided he respects
their rights and does not incite to crime or a breach of the peace. In
fixing upon forbidden acts the law recognizes the Christian religion
as the prevailing religion in this country and punishes blasphemers,
Mormons, Christian Scientists, fortune tellers, members of the Salvation Army and others, though the acts which have brought them
into conflict with the law have been performed with a religious motive. It fosters religion by affording churches the right to become
corporations, by protecting their worship against disturbance, by
exempting their property from taxation and by providing for a cessation from work on Sunday. It permits (Illinois excepted) the Bible,
or portions of it, to be read in the public schools. It allows the use
of the school buildings for Sunday Schools and other forms of religious worship where such use does not conflict with the school laws
or regulations and permits churches to lease their buildings to school
districts for a consideration. It frowns upon the wearing of denominational garments in the school by teachers and does not suffer
pupils to break up the school discipline by absenting themselves from
school on.purely religious holy days."




B.;ASIC PRINCIPIES


6)39


pine Bill caused the complete separation of church and
State, and the abolition of all special privileges and all restrictions theretofore conferred or imposed upon any particular religious sect. All became equal in the eyes of
the law.589 Civil Governor Taft in an early opinion
said: "The civil government has no power to regulate
the internal working or discipline of the church, its creed,
its ceremonies, its methods of raising income, the fees
charged by the ministers, or its use of its own property,
provided, that the ministers or agents of the church in
pursuing the purpose of the church do not injure another
in his civil rights, to wit, the right of life, liberty, or
property, or the rights to which he is entitled as a member of the general public, or do not violate the criminal
law." 590
Insular legislation reinforces these general doctrines.
For example, the School Law 591 prohibits any teacher or
" U. S. v. Balcorta (1913) 25 Phil. 273, 276.
590 Opinion of July 31, 1901, appearing as note 4, Malcolm's Compiled Municipal Code, p. 120.
591 Act 72, sec. 16 (Adm. Code, secs. 1821, 1822), reading as follows: "No teacher or other person shall teach or criticise the doctrines of any church, religious sect or denomination, or shall attempt
to influence the pupils for or against any church or religious sect in
any public school established under this act. If any teacher shall intentionally violate this section, he or she shall, after due hearing, be
dismissed from the public service: Provided, however, That it shall
be lawful for the priest or minister of any church established in the
pueblo where a public school is situated, either in person or by a designated teacher of religion, to teach religion for one-half an hour
three times a week in the school building to those public school
pupils whose parents or guardians desire it and express their desire
therefore in writing filed with the principal teacher of the school,
to be forwarded to the division superintendent, who shall fix the
hours and rooms of such teaching. But no public school teacher
shall either conduct religious exercises or teach religion or act as a
designated religious teacher in the school building under the foregoing authority, and no pupil shall be required by any public school
teacher to attend and receive the religious instruction' herein per



640


PHILIPPINE GOVERNMENT


other person from teaching or criticizing the doctrines of
any church or religious denomination, or from attempting
to influence the pupils for or against any church or religious sect in any public school; but it permits a priest
or minister to teach religion for one-half hour, three times
a week, in the public school building to those public school
pupils whose parents or guardians desire it and express
their desire therefor in writing. The Cemetery Law provides that: "No municipal ordinance or regulation shall
be made which shall restrict or interfere with any person
in the full exercise of his religious sentiments in respect
to the burial of the dead, nor to interfere with any person
or persons, organization, church, religious denomination,
or sect in maintaining and regulating burial grounds or
cemeteries in accordance with their beliefs or customs." 592
So the Attorney-General has held that municipal cemeteries are created for all persons, irrespective of race or
religious beliefs, but that private cemeteries are under
the control of the owners thereof or their duly authorized
representatives.593 Ecclesiastics can in no case be elected
or appointed to a municipal office.594 "Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day,
mitted. Should the opportunity thus given to teach religion be used
by the priest, minister, or religious teacher for the purpose of arousing disloyalty to the United States, or discouraging the attendance of
pupils at such public school, of creating a disturbance of public order,
or of interfering with the discipline of the school, the division superintendent, subject to the approval of the Director of Education, may,
after due investigation and hearing, forbid such offending priest,
minister, or religious teacher from entering the public school building thereafter." As to religious instruction in the public schools, see
the late cases of Herald v. Parish Board (1915) 136 La. 1034; and
People v. Board of Education (1910) 245 Ill. 334, 92 N. E. 251.
692 Act 1458, sec. 6; Adm. Code, sec. 893.
693 5 Op. Atty. Gen. P. I. 672, citing Circular Letter, Executive
Secretary, Jan. 17, 1910, VIII O. G., p. 239.
S6 Act 82, sec. 15; Act 1397, sec. 15; Act 2408, sec. 42 (c); Adm.
Code, secs. 2121, 2289, 2606 (c).






BASIC PRINCIPLES


641


and Sundays" are recognized as "legal religious holidays." 695 Oaths are taken, although a solemn affirmation
can be accepted in lieu thereof; but persons on account of
their opinion in matters of religious beliefs are not excluded   from   being   witnesses.596   Burying    grounds,
churches and their adjacent parsonages or convents, and
lands and buildings used exclusively for religious, charitable, scientific, or educational purposes, and not for private profit are exempted from taxation.97 As held by
the Attorney-General, a municipal council has no power
to allow any church or religious organization to use the
property of the municipality as a place of worship, or to
dedicate to religious purposes any property belonging to
the municipality.59 As held by Civil Governor Taft,
"The common council may regulate or prohibit the use
of the public streets for religious or other processions if,
in the judgment of the council, such processions interfere
with the proper use of the streets by the general public,
but such regulations or prohibitions should be made only
in good faith with a view to the public interest and not
to gratify any personal or political feeling, but, on the
other hand, the council can not regulate the character of
the processions in churches or upon church property." 59
A municipal council can also enact a reasonable ordinance
95 Act 345, as last amended by Act 2160; Adm. Code, sec. 27.
696 Adm. Code, sec. 18; G. 0. No. 58, The Code of Criminal Procedure, sec. 55.
597Act 82, sec. 62; Act 183, sec. 48; Act 1397, sec. 53; Act 1963,
sec. 24; Adm. Code, secs. 432, 2350, 2454, 2548.
698 2 Op. Atty. Gen. P. I. 486.
99 Opinion, July 31, 1901, appearing as note 17, Malcolm's Compiled Municipal Code, p. 80. Note 18 following reads as follows:
"Unauthorized restrictions.-Religious processions and right of freedom of worship should not be unduly restricted. Resolution of Anda,
Pangasinan, null and void for this reason. (Op. Gov. Gen. June 8,
1908.) 'The municipal council is not authorized to prohibit peaceable
religious processions on public streets, for such a restraint on religious
P. I. Govt.-41.




642


PILIPPINE GOVERNMENT


regulating, but not prohibiting, the ringing of church
bells.6~~
The Treaty of Paris in Article VIII protected the property of all kinds of ecclesiastical bodies. The Roman
Catholic Church is recognized by the judiciary as being
a juridical person in the Philippines, with power to hold
property, and to sue and be sued. In the case of Barlin
v. Ramirez, Mr. Justice Willard said that the suggestion
that the Roman Catholic Church has no legal personality
in the Philippines "made with reference to an institution
which antedates by almost a thousand years any other
personality in Europe, and which existed 'when Grecian
eloquence still flourished in Antioch, and when idols were
still worshipped in the temple of Mecca,' does not require
serious consideration."601
liberty finds no place under our present form of government.' (Op. Ex.
Sec., Feb. 26, 1910.) A municipal council is not authorized to pass an
ordinance absolutely prohibiting or taxing religious street processions with instruments, banners, singing, etc., it being beyond the
authority of the municipality to prohibit religious processions and
impose a tax upon them. (1 Dillon's Municipal Corporations, p. 396,
note 2; 2 Op. Atty. Gen., 161.) The provisions of an ordinance prohibiting and punishing with a fine any person who should carry a
religious image through the public streets on a certain day not declared to be a public or religious holiday held void and illegal. (U.
S. v. Magboo, Court of First Instance, Batangas, Oct. 23, 1908.)"
Compare with 1 Op. Atty. Gen. P. I. 236 and 1 Op. Atty. Gen. Porto
Rico, 16.
600 See Malcolm's Compiled Municipal Code, p. 121, note 9, and
1 Op. Atty. Gen. Porto Rico, 68.
6017 Phil. 41, 58 (1906). In accord, Municipality of Ponce v.
Roman Catholic Apostolic Church of Porto Rico (1908) 210 U. S.
296, 52 L. Ed. 1068; Santos T,. Holy Roman Catholic Apostolic
Church, Parish of Tambobong (1909) 212 U. S. 465, 53 L. Ed. 599;
Harty v. Sandin (1908) 11 Phil. 450; Government of the Philippine
Islands v'. Roman Catholic Bishop of Nueva Caceres (1915) XIII
O. G. 1834; Act 1376 of the Philippine Commission; Zollmann,
Classes of American Religious Corporations, XIII Michigan Law
Review, May, 1915, pp. 556, 572.




I


BASIC PRINCI I'LES


643


~ 144. Local government.u0
Philippines.
"Without hampering them by too specific instructions, they should
in general be enjoined, after making themselves familiar with the
conditions and needs of the country, to devote their attention in the
first instance to the establishment of municipal governments in
which the natives of the Islands, both in the cities and in the rural
communities, shall be afforded the opportunity to manage their own
local affairs to the fullest extent of which they are capable, and subject to the least degree of supervision and control which a careful
study of their capacities and observation of the workings of native
control show to be consistent with the maintenance of law, order,
and loyalty. The next subject in order of importance should be the
organization of government in the larger administrative divisions,
corresponding to counties, departments, or provinces, in which the
common interests of many or several municipalities falling within
the same tribal lines, or the same natural geographical limits, may
best be subserved by a common administration...
"In the distribution of powers among the governments organized
by the Commission, the presumption is always to be in favor of the
smaller subdivision, so that all the powers which can properly be
exercised by the municipal government shall be vested in that government, and all the powers of a more general character which can
be exercised by the departmental government shall be vested in that
government, and so that in the governmental system which is the
result of the process the Central Government of the Islands, following the example of the distribution of powers between the States
and the National Government of the United States, shall have no
direct administration except of matters of purely general concern,
and shall have only such supervision and control over local governments as may be necessary to secure and enforce faithful and efficient
administration by local officers.
"These general rules are to be observed: That in all cases the
municipal officers who administer the local affairs of the people are
to be selected by the people." (President's Instructions to the Philippine Commission.)
602 See generally Dillon's Municipal Corporations, 5th Ed.;
Cooley's Constitutional Limitations, 7th Ed., Ch. VIII; Bryce,
American Commonwealth, Rev. Ed. 1914, Chs. XLVIII-LII; Malcolm's Compiled Municipal Code.




644


PHILIPPINE GOVERNMENT


It is axiomatic that the people of a community are
entitled to self-government. No constitution is needed
to realize the principle of home rule. But President McKinley made it such for the Philippines by his solicitous
injunction to the Commission, above quoted, in behalf
of municipal and provincial governments.
Antiquarians tell us of cities with local jurisdiction
which existed in very remote periods. Memphis, Thebes,
Rome,-even their ruins, proclaim their ancient splendor.
Modern cities have not greatly improved upon their organization or activities. All cities the world over have
much in common. All face the same questions. Municipal government is the problem of the ages. Was it
not M. de Tocqueville who wrote "a nation may establish a system of free government, but without the spirit
of municipal institutions it can not have the spirit of
liberty?"
Local government, as we have found, was known in
the Philippines before the coming of the Spaniards. It
continued with changes under the Spanish administration.
The American government brought in their general system with the exception that instead of complete decentralization, in practice, municipalities and provinces are under
central control. Civil Governor Taft wrote: "The municipal law is drawn on the same general plan as the
municipal codes of this country, (the United States) and
the government is practically autonomous.
The provincial government is partially autonomous." 608
Diverse civilizations have thus attended local assemblies
in the Philippines, the one touching the other so as to
make unbroken continuity. Public corporations now exist as municipalities or townships under the general law,


60 William H. Taft, Civil Government of the Philippines, 71 Outlook, May 31, 1902, p. 305, printed in "The Philippines," pp. 40, 41.




i
II
i
i


BASIC PRINCIPLES


645


as chartered cities for the city of Manila and the city of
Baguio, and as provinces for the larger units.
The American and English law of corporations governs their functions. Among its elementary principles are
these:
Public corporations are created for local political purposes connected with the public good, and as agencies of
the State to assist in the civil government. The legislature has exclusive power to create, change, or destroy
them at will. The consent of the people affected is not
an essential requisite to their incorporation.'  Form of
organization, of which there are four distinct types, differs. The charter or law by which created becomes the
local organic act. The municipal corporation can exercise the following powers and no others: First, those
granted in express words; second, those necessarily or
fairly implied in or incident to the powers expressly
granted; third, those essential to the accomplishment of
the declared objects and purposes of the corporation, not
simply convenient or indispensable.606 Municipal powers
are of two classes, governmental and corporate. In the
Philippines they can, under their names, sue and be sued,
contract and be contracted with, acquire and hold property for the general interest of the municipality or province, and exercise all the powers conferred in the organic
act. Mr. Justice Johnson in United States v. Joson explains these fundamental rules in the following wellchosen language:
"Municipal charters are general or special laws of the
state (or central government) granting to the people of
certain well-defined sections of the state the right of local
self-government. While the state grants to such localiO0 Berlin v. Gorham (1856) 34 N. H. 266.
605 Spaulding v. Lowell (1839) 23 Pick. 71; U. S. v. Joson (1913)
26 Phil. 1, 9; I Dillon's Municipal Corporations, 5th Ed., sec. 237.




646


PHILIPPINE GOVERNMENT


ties the right of self-government in local affairs, it does
not thereby deprive itself of the right also, when the occasion demands, to interfere and enforce its own laws.
The state, in granting to the municipality the right
of local self-government, does not thereby deprive itself of
its general powers throughout the length and breadth of
the state. The charter may be either modified, amended,
or repealed whenever the state deems it necessary or advisable. The municipality is simply the agent of the
State and is subject, at all times, to its control." 606
Honest, efficient, and economical municipal government
constitutes a vital problem for the people of the Islands.
It touches the citizen in his daily life any number of times,
while the Insular Government touches him once. Local
administrations should, therefore, endeavor, in pursuance
of their powers, to advance as rapidly as have villages and
cities in progressive countries. Unhealthiness and unsightliness should be effaced; broader streets, kept clean
and orderly, efficient drainage, adequate water supply,
sanitation and lighting, sufficient fire and police protection, more commodious public buildings, attractive parks
and places of outdoor recreation and play grounds for
children, public baths, better educational advantages, and,
indeed, all other improvements which tend to make the
municipalities and the homes of its citizens more comfortable, attractive, and beautiful, should be demanded.
Above all, the citizen should insist on a fixing of responsibility and a proper and constant attention by officials to
their civic duties, so that the fine observation of Lord
Bacon may apply: "The best governments are always
subject to be like the fairest crystals wherein the icicle
or grain is seen, which in a fouler stone is never
perceived."


06 26 Phil. 1, 11 (1913).




BASIC PRINCIPLES


647


~ 145. Suffrage.607-No     provision  similar to   the
fifteenth amendment 608 to the United States Constitution
was included in the Philippine Bill of Rights. The same
causes as gave rise to the necessity of this article in the
United States did not call for its extension to the Philippines. But suffrage was granted to the Filipino people by
the Philippine Bill and subsequent Acts of Congress, and
given application by Acts of the Philippine Commission
and Legislature.   The right to vote is a high prerogative of Philippine citizenship.  It is more.  Tlhe right
to vote is a duty.  Mr. Justice Story, one of the most
eminent authorities on American jurisprudence, once sail
that the purpose of suffrage "is to keep up the continuity
of government, and to preserve and perpetuate public
order and the protection of individual rights. The purpose
is therefore public and general, not private and individual.
Suffrage must come to the individual, not as a
right, but as a regulation which the State establishes as
a means to perpetuate its own existence, and to insure to
the people the blessings it was intended to secure."  And
Baron   Montesquieu, the great French publicist, once
wrote: "Upon the manner of regulating the suffrage depends the salvation of States."
The English Ballot Act, commonly known as the
Australian Ballot System, is here in force. The privacy
of the ballot, which is its most salient characteristic, is a
valuable safeguard of the independence of the voter
607 See Villamor, Tratado de Elecciones, 2d Ed. and Kalaw, Teorfas
Constitucionales, Chs. VI, VII, VIII.
608 The fifteenth amendment to the United States Constitution
reads:
"~ 1. The right of citizens of the United States to vote shall not be
denied or abridged by the United States, or by any State, on account
of race, color, or previous condition of servitude.
"~ 2. The Congress shall have power to enforce this article by
appropriate legislation."




648


PHILIPPINE GOVERNMENT


against the influence of wealth and power.9 The citizen
must be allowed to vote for whom he pleases free from
improper influences. In Gardiner v. Romulo, Mr. Justice
Trent said:
"The purity of elections is one of the most important
and fundamental requisites of popular government. To
banish the spectre of revenge from the minds of the timid
or defenseless, to render precarious and uncertain the bartering of votes, and lastly, to secure a fair and honest
count of the ballots cast, is the aim of the law. To accomplish these ends, Act No. 1582 was enacted. This law
requires that only qualified electors shall be admitted
to the polls; that they shall vote in absolute secrecy, and
that the returns shall be justly compiled and announced..In its essential details, this law is a counterpart of the
ballot laws almost universally adopted within comparatively recent times in the United States, and is generally
called by textwriters the Australian ballot law..
The central idea of the Australian ballot law, as so often
expressed in the cases, is to shroud the marking of the
ballots in absolute secrecy." 610
The Philippine electoral system 61 is perhaps wisely
ultra-conservative in nature. For example, woman suffrage has no champions, militant or otherwise, such as
are found in other lands. Direct primaries are not advocated. None of the schemes devised to equalize the powers of the electorate have been adopted or even discussed.
So we hear nothing at present of the "list system;" the
"Hare system;" the "limited vote plan;" or the "cumulative vote plan." Nor are the Recall, the Initiative, or the
609 People v. Pease (1863) 27 N. Y. 45, 81.
61026 Phil. 521, 550, 562 (1914).
611 See Villamor, Tratado de Elecciones; 2d Ed.; Teodoro and
Diokno, The Election Law Compiled and Annotated; Adm. Code,
Book 1, Title V, Ch. 20.




BASIC PRINCIPLES


649


Referendum in force.611' Some of these advanced ideas
can be expected to be made into law once the framework
of government is determined.
~ 146. Educatiomn.62-The conception that the
State must make provision for education is as old as Western civilization. The Northwest Ordinance of 1787, antedating the American Constitution, thought public instruction important enough for special encouragement. President McKinley sent the principle to the Philippines with
his Instructions when he said: "It will be the duty of the
Commission to promote and extend and, as they find occasion, to improve the system of education already inaugurated by the military authorities. In doing this they
should regard as of first importance the extension of a
system of primary education which shall be free to all, and
which shall tend to fit the people for the duties of citizenship and for the ordinary avocations of a civilized community.  This instruction should be given, in the first
instance, in every part of the Islands in the language of
the people. In view of the great number of languages
spoken by the different tribes, it is especially important
to the prosperity of the Islands that a common medium
of communication may be established, and it is obviously
desirable that this medium should be the English
language. Especial attention should be at once given to
affording full opportunity to all the people of the Islands
to acquire the use of the English language." The injunction of the martyred President has been consistently and
energetically followed by the Philippine Government.
Justification for spending so much proportionately on edu611a For general description of advanced electoral ideas see Holt,
Introduction to the Study of Government, pp. 125-151; and Maynard
v. Board of Canvassers (1890) 84 Mich. 228.
612See as one reference Cyclopedia of American Government,
title "Education as a Function of Government," by Albert Bushnell
Hart.




650


PHILIPPINE GOVERNMENT


cation, if indeed any were needed, is found in the active
moral effect, in the refining influence of transferring from
age to age the learning of mankind, in protection of the
ignorant, in material and industrial development, and in
training for good citizenship. The youth of the Philippines, whatever his station in life, and whatever his affluence or lack of affluence, not only has an inherent right
to an education, but finds that right possible of fulfillment,
because of the active support of the Government and of
private institutions.
~ 147. Subject and title of bills.
Philippines.                United States.
"That no private or local bill  (State Constitutions.)
which may be enacted into law
shall embrace more than one subject, and that subject shall be expressed in the title of the bill."
(Philippine Bill, sec. 5, par. 17.)
"That no bill which may be
enacted into law shall embrace
more than one subject, and that
subject shall be expressed in the
title of the bill." (Philippine Autonomy Act, sec. 3, par. 17.)
Having considered the great powers of government
and the great rights of the people, we come to further
positive prohibitions.
The evils designed to be remedied by the quoted constitutional provisions are described by the Supreme Court
of Michigan in the following language:
"The history and purpose of this constitutional provision are too well understood to require elucidation at our
hands. The practice of bringing together into one bill
subjects diverse in their nature and having no necessary
connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several




BASIC PRINCIPLES


651


measures, no one of which could succeed upon its ownl
merits, was one both corruptive of the legislator and
dangerous to the State. It was scarcely more so, however,
than another practice, also intended to be remedied by
this provision, by which, through dexterous management,
clauses were inserted in bills of which the titles gave no
intimation, and their passage secured through legislative
bodies whose members were not generally aware of their
intention and effect. There was no design by this clause
to embarrass legislation by making laws unnecessarily restrictive in their scope and oleration, and thus multiplying their number; but the framers of the constitution
meant to put an end to legislation of the vicious character
referred to, which was little less than a fraud upon the
public, and to require that in every case the proposed
measure should stand upon its own merits, and that the
legislature should be fairly satisfied of its own design
when required to pass upon it." 61"
The Philippine Bill, like some State Constitutions, limited the prohibition to private or local bills. So when the
point was raised that section 3 of Act 1697 on the general
subject of perjury was not expressed in the title of the
Act, the Supreme Court was necessarily forced to hold
that the contention could not be sustained, because the
prohibition related only to private or local bills, and Act
1697 was not of this character.614 Probably to cure this
defect the Philippine Autonomy Act, by omitting the
words "private or local," broadened the force of the
613 People v. Mahaney (1865) 13 Mich. 481, 494, 495. See further
Sun Mutual Insurance Co. v. City of New York (1853) 8 N. Y. 241,
251; State v. County Judge of Davis Co. (1856) 2 Iowa, 280; Walker
v. Caldwell (1894) 4 La. Ann. 298; Cooley's Constitutional Limitations, 7th Ed., pp. 202-205; and Jones, Statute Law Making, pp. 44-48.
614 U. S. v. Concepci6n (1909) 13 Phil. 424, followed and confirmed
in U. S. v. Fonseca (1911) 20 Phil. 191.




652


PHILIPPINE GOVERNMENT


clause to be, like some State Constitutions, a general
inhibition.
The provisions as now existing should therefore be
treated as mandatory.615 If the Legislature disregard it,
the courts must enforce it, with the result that the whole
Act may be declared void.616 But great particularity in
stating the object of the bill in the title is not required.617
Legislation will not be embarrassed by strict construction.
The constitutional provision "has no application to municipal ordinances, as these do not partake of the nature
of laws, but are mere rules provided for the fulfillment
of the laws." 618
~ 148. The enacting clause.619
Philippines.                  United States.
"All laws passed hereafter by   (State Constitutions.)
the Philippine Commission shall
have an enacting clause as follows: 'By authority of the United
States, be it enacted by the Philippine Commission.'" (Philippine Bill, sec. 1, portion.)
615 The viewpoint of most courts, Cooley's Constitutional Limitations, 7th Ed., pp. 213, 214. But not of California-Washington v.
Page (1854) 4 Cal. 388 (later reversed by People v. Parks (1881) 58
Cal. 624-see Ex parte Liddell (1892) 93 Cal. 633), or of OhioPim v. Nicholson (1856) 6 Ohio St. 176, where the section is regarded as merely directory. See Jones, Statute Law Making, Ch. IV.
616 Cooley's Constitutional Limitations, 7th Ed., p. 211; Dobbins v.
Northampton Tp. (1888) 50 N. J. Law, 496, 14 Atl. 587.
617 People v. Mahaney (1865) 13 Mich. 481. "The words 'for other
purposes' must be laid out of consideration. They express nothing,
and amount to nothing as a compliance with this constitutional requirement. Nothing which the act could not embrace without them
can be brought in by their aid." Town of Fishkill v. Fishkill & Beekman Plank Road Co. (1856) 22 Barb. 634.
81 U. S. v. Espiritusanto (1912) 23 Phil. 610, 614.
619 See Jones, Statute Law Making, Ch. VI.




BASIC PRINCIPLES


653


Joint Resolution No. 3 of the First Philippine Legislature (also the Administrative Code, sec. 6) provided
that all laws thereafter enacted by the Legislature slall
have the following enacting clause: "By authority of the
United States, be it enacted by the Philippine Legislature,
that:"
Courts differ as to whether constitutional provisions
stipulating the form of the enacting clause are mandatory
or directory.620 The proper course is naturally for the
Legislature to follow the prescribed form.
~ 149. Obligation of contracts.621
Philippines.                  United States.
"That no law impairing the ob-  "No State shall... pass
ligation of contracts shall be en-  any... law impairing the
acted." (Philippine Bill, sec. 5, obligation of contracts." (United
par. 5. See also sec. 60.)     States Constitution, art. I, par. 1,
"That no law impairing the   portion.)
obligation of contracts shall be
enacted."  (Philippine Autonomy Act, sec. 3, par. 5.)
No one can think of this subject without remembering
the historic Dartmouth College Case.622 Argued by Webster, the most famous American lawyer and orator,
and decided by Marshall, the most famous American
jurist, its doctrines "have become so embedded in the
jurisprudence of the United States as to make them to all
intents and purposes a part of the United States Con620 Compare Sjoberg v. Security Savings and Loan Association
(1898) 73 Minn. 203 with McPherson v. Leonard (1868) 29 Md. 377.
See Cushing, Parliamentary Law, sec. 2102.
621 See generally Cooley's Constitutional Limitations, 7th Ed., pp.
383-417; Willoughby on the Constitution, Vol. II, Ch. 48; 6 R. C. L.
pp. 323-369.
622 Trustees of Dartmouth College v. Woodward (1819) 4 Wheat.
518, 4 L. Ed. 629.




654


PHILIPPINE GOVERNMENT


stitution itself." 628 The opinion in that case held that the
constitutional provision applied not only to contracts between individuals and to grants of property made by the
State to individuals or to corporations, but that the rights
and franchises conferred upon private as distinguished
from public corporations by the legislative acts under
which their existence was authorized and the right to exercise the functions conferred upon them by the statute
were, when accepted by the corporators, contracts which
the State could not impair. 624 The opinion, it will therefore be noticed, confined the contracts which the Constitution protects to those respecting property rights.
Contracts when treated as property are also protected
from direct impairment by the due process of law
clause.625
As a leading example of the application of the principles growing out of the obligation of contracts provision
of the Constitution, and which has local force, by repeated
adjudications of the United States Supreme Court, it has
been decided that the legislature may make a valid contract with a corporation in respect to taxation and that
such contract can be enforced against the State at the instance of the corporation; so if the property of an individual or corporation is exempted from taxation, the
State is bound thereby.626  Our Supreme Court held section 134 of the Internal Revenue Law of 1904 (Act 1189)
628 Waite, C. J. in Stone v. Mississippi (1880) 101 U. S. 814, 816,
25 L. Ed. 1079.
624 Statement in Greenwood v. Freight Co. (1882) 105 U. S. 13, 26
L. Ed. 961.
626 Sinking Fund Cases (1879) 99 U. S. 700, 25 L. Ed. 496 and
other cases.
626 McGee v. Mathis (1866) 4 Wall. 143, 18 L. Ed. 314; Home of
the Friendless v. Rouse (1869) 8 Wall. 430, 438, 19 L. Ed. 495; The
Asylum v. The City of New Orleans (1882) 105 U. S. 362, 26 L. Ed.
1128; Powers v. The Detroit, Grand Haven and Milwaukee Railway
(1906) 201 U. S. 543, 50 L. Ed. 860, cited and quoted in Casanovas




BASIC PRINCIPLES


655


levying taxes on mining claims void, because it imlpaired
the obligation of the contracts contained in the concessions of mines made by the Spanish Government.67
Among the many tributaries which flow into the main
stream  of the Dartmouth College Case mention can be
made of these: The term "contract" has in this connection been exhaustively defined by Mr. Chief Justice Marshall, in a decision repeatedly followed, to mean a lawfully binding agreement in respect to property, either express or implied, executory or executed, between private
parties or between a commonwealth and a private party
or private parties; or a grant from one party to another;
or a grant, charter, or franchise from a commonwealth
to a private party or private parties.628 Marriage is not
here such a contract, the obligation of which is protected
from  impairment.629 Neither are charters of municipal
corporations included.630 "The obligation of a contract,"
according to Mr. Chief Justice Mlarshall, "is the law which
binds the parties to perform  their agreement." "u   The
obligation of a contract depeinds upon the law    of the
place of making.62 Different tests to determine whether
a contract has been "impaired" have been announced from
time to time by the courts. One of the tests that a contract has been impaired is that its value has, by legislation,
been diminished. "It is not by the Constitution to be imv. Hord (1907) 8 Phil. 125. See also Cooley's Constitutional Limitations, 7th Ed., p. 395.
627 Casanovas v. Hord (1907) 8 Phil. 125.
628 Fletcher v. Peck (1810) 6 Cranch 87, 3 L. Ed. 162; Burgess,
Political Science and Constitutional Law, Vol. I, p. 235.
629 Maynard v. Hill (1888) 125 U. S. 190, 31 L. Ed. 654.
860 Laramie Co. v. Albany Co. (1876) 92 U. S. 307, 23 L. Ed. 552.
681 Sturges v. Crowninshield (1819) 4 Wheat. 122, 197, 4 L. Ed.
529; Ogden v. Saunders (1827) 12 Wheat. 213, 335, 6 L. Ed. 606;
6 R. C. L. p. 234.
682 N. W. Ins. Co. v. McCue (1912) 223 U. S. 324, 56 L. Ed. 419;
Selover v. Walsh (1912) 226 U. S. 112, 57 L. Ed. 146.




656


PHILIPPINE GOVERNMENT


paired at all. This is not a question of degree or cause,
but of encroaching, in any respect, on its obligationdispensing with any part of its force." 63      "The laws
which subsist at the time and place of the making of a
contract, and where it is to be performed, enter into and
form a part of it, as if they were expressly referred to or
incorporated in its terms. This principle embraces alike
those which affect its validity, construction, discharge, and
enforcement....  The ideas of validity and remedy are inseparable, and both are parts of the obligation,
which is guaranteed by the Constitution against invasion.
It is competent for the states to change the form of the
remedy, or to modify it otherwise, as they may see fit,
provided no substantial right secured by the contract is
thereby impaired." "4 The person with whom the contract is made by the State may continue to enjoy its benefits unmolested as long as he chooses, but there his rights
end, and he cannot, by any form of conveyance, transmit
the contract or its benefits to a successor.685   "But the
state, by virtue of the same power which created the
original contract of exemption, may either by the same
law or by subsequent laws, authorize or direct the transfer
of the exemption to a successor in title. In that case the
exemption is taken, not by reason of the inherent right of
63 Planters' Bank v. Sharp (1848) 6 How. 327, 12 L. Ed. 447. See
generally 6 R. C. L. pp. 328, 329.
684 Von Hoffman v. Quincy (1867) 4 Wall. 535, 18 L. Ed. 403, followed in Gaspar v. Molina (1905) 5 Phil. 197. See Sturges v.
Crowninshield (1819) 4 Wheat. 122, 200, 4 L. Ed. 529.
65 Morgan v. Louisiana (1876) 93 U. S. 217, 23 L. Ed. 860; Wilson v. Gaines (1881) 103 U. S. 417, 26 L. Ed. 401; Louisville & N. R.
Co. v. Palmes (1883) 109 U. S. 244, 27 L. Ed. 922; Pickard v. East
Tennessee, V. & G. R. Co. (1889) 130 U. S. 637, 32 L. Ed. 1051; St.
Louis & S. F. R. Co. v. Gill (1895) 156 U. S. 649, 39 L. Ed. 567; Norfolk & W. R. Co. v. Pendleton (1895) 156 U. S. 657, 39 L. Ed. 574;
Rochester Ry. Co. v. Rochester (1907) 205 U. S. 236, 51 L. Ed. 784.




B.\SIC PRINCIPLES


657


the original holder to assign it, but by the action of the
State in authorizing or directing its transfer." 6
A pertinent inquiry would be how to avoid some of the
results accruing from the construction of this clause of
the Constitution. Mr. Justice Story may have foreseen
this probability, for in his concurring opinion in the Dartmouth College Case he suggested that when the legislature
was enacting a charter for a corporation, a provision in
the statute reserving to the legislature the right to amend
or repeal it must be held to be a part of the contract itself,
and the subsequent exercise of the right would be in accordance with the contract and could not, therefore, impair its obligation. This has since been a favorite method
with legislative bodies by which to get around the Dartmouth College decision and to preserve intact the rights
of the State. For example, the Philippine organic law
(Philippine Bill, sec. 74, Philippine Autonomy Act, sec.
28) provides "that no franchise or right shall be granted
to any individual, firm, or corporation except under the
conditions that it shall be subject to amendment, alteration, or repeal by the Congress of the United States."
Consequently, under such a reservation, "whatever right,
franchise, or power in the corporation depends for its existence upon the granting clauses of the charter, is lost
by its repeal." " As further restrictions, besides that
limiting to property rights, the prevailing opinion and
one based upon sound reason, Judge Cooley says, is "that
the State cannot barter away, or in any manner abridge or
weaken, any of those essential powers which are inherent
in all governments, and the existence of which in full
vigor is important to the well-being of organized society;
and that any contracts to that end are void upon general
s63 Rochester Ry. Co. v. Rochester (1907) 205 U. S. 236, 248, 51 L.
Ed. 784.
s7 Greenwood v. Freight Co. (1882) 105 U. S. 13, 26 L. Ed. 961.
P. I. Govt.-42.




658


HIIILIPPINE GOVERNMIENT


principles." 638  For this reason, "the doctrine that a
corporate charter is a contract which the Constitution
of the United States protects against impairment by subsequent state legislation is ever limited in the area of its
operation by the equally well-settled principle that a legislature can neither bargain away the police power nor in
any wise withdraw from its successors the power to take
appropriate measures to guard the safety, health, and
morals of all who may be within their jurisdiction." 639
Again, "the state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them
entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when
parcels can be disposed of without impairment of the
public interest in what remains, than it can abdicate its
police powers in the administration of government and
the preservation of the peace." 640 But paramount to the
contract is the right of eminent domain which does not
impair the contract but appropriates it.641
With the proviso to the general constitutional provision
prohibiting the passing of any law impairing the obligation of contract, limiting it to property, with the counterprohibition safeguarding the essential attributes of
638 Cooley's Constitutional Limitations, 7th Ed., p. 400.
639 Boston Beer Co. v. Massachusetts (1878) 97 U. S. 25, 24 L. Ed.
989; Thorpe v. R. B. R. R. Co. (1854) 27 Vt. 140, 62 Am. Dec. 625;
Northwestern Fertilizer Co. v. Hyde Park (1878) 97 U. S. 659, 24
L. Ed. 1036; Stone v. Mississippi (1880) 101 U. S. 814, 25 L. Ed.
1079; Douglas v. Kentucky (1897) 168 U. S. 488, 42 L. Ed. 553;
Texas & N. O. R Co. v. Miller (1911) 221 U. S. 408, 414, 55 L. Ed.
789.
640Illinois Central R. Co. v. Illinois (1892) 146 U. S. 387, 453, 36
L. Ed. 1018.
641 Long Island Water Supply Co. v. Brooklyn (1897) 166 U. S.
685, 41 L. Ed. 1165.




BA.SIC PRINCIPLES


659


government, such as the police power and public property rights, and with the saving clause in charters, the
teeth have been pretty well drawn from the Dartmouth
College Case.
Our Legislature is bound by the prohibition. Our
courts must enforce it. Accordingly, merely as a further
example, a contract made between the Government of the
Philippine Islands and an employee is not affected by any
subsequent amendment of the law then in force.6
~ 150. Titles of nobility; presents, etc., from foreign states.6"


Philippines.
"That no law granting a title
of nobility shall be enacted, and
no person holding any office of
profit or trust in said Islands,
shall, without the consent of the
Congress of the United States,
accept any present, emolument,
office, or title of any kind whatever from any king, queen, prince,
or foreign State."  (Philippine
Bill, sec. 5, par. 9.)
"That no law granting a title
of nobility shall be enacted, and
no person holding any office of
profit or trust in said Islands,
shall, without the consent of the
Congress of the United States,
accept any present, emolument,
office, or title of any kind whatever from any king, queen, prince,
or foreign State."  (Philippine
Autonomy Act, sec. 3, par. 9.)


United States.
"No title of nobility shall be
granted by the United States;
and no person holding any office
of profit or trust under them
shall, without the consent of the
Congress, accept of any present,
emolument, office, or title, of any
kind whatever, from any king,
prince, or foreign state." (United
States Constitution, art. I, sec.
9, last par.)
"No State shall... grant
any title of nobility." (United
States Constitution, art. I, sec.
10, par. 1, portion.)


642 Insular Government v. Frank (1909) 13 Phil. 236.
643 See the Federalist Nos. 43, 44; Story on the Constitution, 4th
Ed., Ch. 41; Cooley's Princ'iles of Constitutional Law, 3d Ed., p. 113.




660


PHILIPPINE GOVERNMENT


Such provisions are in line with the basic guaranty of
the American Constitution of a republican form of government for every State of the Union (art. IV, sec. 4).
The Philippine Bill of Rights, our Supreme Court has
said, "approved of, and extended (to the Philippine Islands) the powers of a republican form of government
modeled after that of the United States." 6"    Consequently, the granting of titles of nobility would be incompatible with the institutions of the United States and
the Philippines.
The prohibition against the acceptance of any present,
emolument, office, or title from any foreign state is justified on the ground of a wise jealousy of alien influence in
domestic affairs.
~ 151. Law of primogeniture.
Philippines.
"Nor shall the law of primogeniture ever be in force in the Philippines." (Philippine Autonomy Act, sec. 3, par. 8, last clause.)
The dictionaries define and describe primogeniture
thus: "The superior or exclusive right possessed by the
eldest son, and particularly, his right to succeed to the
estate of his ancestor, in right of his seniority by birth,
to the exclusion of younger sons." 
It is not clearly understood why the authors of the
Philippine Autonomy Act thought it imperative to add
this new prohibition to Philippine Organic Law. The law
of primogeniture was a feudal notion of the Middle Ages,
now modified in England, abolished in the United States,
and without a trace in the Civil law of the Philippines.
Descent is here clearly and justly regulated under the
well-known Civil law rules. So far as known, no one has
< Roa v. Collector of Customs (1912) 23 Phil. 315, 340.
66 Black's Law Dictionary, 2d Ed. See also 3 Washburn on Real
Property, 6th Ed., pp. 4 et seq.




BASIC PRINCIPLES


661


ever even advocated a law of primogeniture for the
Islands.
~ 152. Polygamy.


Philippines.
"Contracting of polygamous or
plural marriages hereafter is prohibited. That no law shall be
construed to permit polygamous
or plural marriages."  (Philippine Autonomy Act, sec. 3, par.
14, last two sentences.)


United States.
"Every person who has a husband or wife living, who marries another, whether married or
single, and any man who simultaneously, or on the same day,
marries more than one woman, is
guilty of polygamy, and shall be
fined not more than five hundred
dollars and imprisoned not more
than five years. But this section
shall not extend to any person by
reason of any former marriage
whose husband or wife by such
marriage shall have been absent
for five successive years, and is
not known to such person to be
living, and is believed by such
person to be dead, nor to any
person by reason of any former
marriage which shall have been
pronounced void by a valid decree of a competent court, on the
ground of nullity of the marriage contract." (U. S. Revised
Statutes, sec. 5352, as amended;
U. S. Criminal Code, sec. 213;
U. S. Compiled Statutes, 1913,
sec. 10486.)


Polygamy is considered "contrary to the spirit of Christianity and to the civilization which Christianity has produced in the Western World." M     In another case, the
Supreme Court of the United States said: "Bigamy and
polygamy are crimes by the laws of all civilized and
e6 Mormon Church v. U. S. (1890) 136 U. S. 1, 49, 34 L. Ed. 478.




662


PHILIPPINE GOVERNMENT


Christian countries...  They tend to destroy the
purity of the marriage relation, to disturb the peace of
families, to degrade woman and to debase man. Few
crimes are more pernicious to the best interests of society and receive more general or more deserved punishment."   7   The constitutional guaranty of religious
freedom does not preclude laws in respect to plural marriages; and such Congressional legislation may possibly
provide a rule of action for all those residing "in places
over which the United States has exclusive control"-the
Philippines."8   Anyhow, illegal marriages are here punished by Insular law.649
~ 153. Appropriations.
Philippines.                  United States.
"That no money shall be paid   "No money shall be drawn
out of the Treasury except in  from the Treasury, but in consepursuance of an appropriation by  quence of appropriations made
law." (Philippine Bill, sec. 5, by law; and a regular statement
and account of the receipts and
"Tan oepar. 15.)      expenditures of all public money
"That no money shall be paid  shall be published from time to
out of the Treasury except in  time." (United States Constitupursuance of an appropriation  tion, art. I, sec. 9, par. 7.)
647 Davis v. Beason (1889) 133 U. S. 333, 341, 33 L. Ed. 637. "Certainly no legislation can be supposed more wholesome and necessary
in the founding of a free, self-governing commonwealth, fit to take
rank as one of the co-ordinate States of the Union, than that which
seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one
woman in the holy estate of matrimony-the sure foundation of all
that is stable and noble in our civilization; the best guaranty of that
reverent morality which is the source of all beneficent progress in
social and political improvement." Murphy v. Ramsey (1885) 114
U. S. 15, 45, 29 L. Ed. 47. A description of legislation against polygamy is given in Reynolds v. U. S. (1878) 98 U. S. 145, 25 L. Ed. 244.
68 Reynolds v. U. S. id.
6 Arts. 440, 471-480, Penal Code; G. O. No. 68, The Marriae
Law, sec. 3.




BASIC PRINCIPLES


663


by law." (Philippine Autonomy
Act, sec. 3, par. 15.)
"That all money collected on
any tax levied or assessed for a
special purpose shall be treated
as a special fund in the Treasury
and paid out for such purpose
only." (Philippine Bill, sec. 5,
par. 19.)
"That all money collected on
any tax levied or assessed for a
special purpose shall be treated as
a special fund in the treasury and
paid out for such purpose only."
(Philippine Autonomy Act, sec.
3, par. 19.)
Tlhese restrictions are aimed at executive officials, particularly those connected with the Treasury.       The purpose is to reserve the right to make appropriations to
the Legislature, leaving no discretion to the Treasurer.66
An appropriation here means a legislative authorization
that money may be paid out at the Treasury.651      Without
such authorization, even if a claim     be supported by the
judgment of a court, no money can be paid by the Treasury.652 If by an oversight, a valid public obligation is not
provided for, a deficiency appropriation is necessary before payment can be made. The Attorney-General of the
Philippines and the Insular Auditor have held these provisions binding in a number of opinions and rulings.658
The annual Appropriation Acts also provide, in substance,
50 U. S. v. Price (1885) 116 U. S. 43, 29 L. Ed. 541; Hoey v.
Baldwin (1902) 1 Phil. 551.
651 Compagna v. U. S. (1891) 26 Ct. Cl. 317.
652 Reeside v. Walker (1850) 11 How. 271, 13 L. Ed. 693.
5s See Op. Atty. Gen. P. I., April 11, 1913, citing American decisions; but see Acts 1902 and 1989 (sec. 4) of the Philippine Legislature, which came dangerously near to violating the provision, to
say the least.




664


PHILIPPINE GOVERNMENT


that all sums appropriated shall be expended solely for the
specific purposes for which appropriated and for no
others.6"
The United States Constitution and many other constitutions contain an additional provision, not here in
force, to the effect that all bills for raising revenue shall
originate in the House of Representatives. (Art. I, sec.
7, par. 1.)   The advantage resulting therefrom     is believed to be because the people have a more direct influence upon the popular branch of the Legislature. Although not written into the Philippine organic law, the
insistence of the Philippine Assembly has finally caused
the upper chamber to recognize this privilege as in the
Assembly.655
There is also a provision peculiar to Porto Rico and
the Philippines, providing that: "If at the termination
of any fiscal year the appropriations necessary for the
support of government for the ensuing fiscal year shall
not have been made, the several sums appropriated in the
last appropriation bills for the objects and purposes
therein specified, so far as the same may be done, shall
be deemed to be reappropriated for the several objects
and purposes specified in said last appropriation bill; and
until the legislature shall act in such behalf the treasurer
shall, when so directed by the Governor-General, make
the payments necessary for the purpose aforesaid." 656
The United States Federal Court for Porto Rico has held
that this does not mean that every specific appropriation
654 See for example, Act 2540, sec. 5; and as permanent legislation, Adm. Code, sec. 630.
655 See Singson, The Filipino Legislator; His Difficulties and Successes, I Philippine Law Journal, August, 1914, pp. 12, 16.
666 Philippine Bill, sec. 7, as amended by Act of Congress, Feb. 27,
1909, last proviso; Philippine Autonomy Act, sec. 19, portion; Olmstead Law for Porto Rico of July 15, 1909, 31 Stat. at L. 83, Ch. 191.
The Japanese Constitution, Art. 71, contains a provision for a similar device.




BASIC PRINCIPLES


665


of the previous appropriation bills is specifically re-enacted
to be specifically devoted to the purposes specifically set
forth in such appropriation bills, but that it means that an
amount equal to the total of the sums appropriated in such
previous appropriation bills is deemed to be appropriated
for the support of the government for the current fiscal
year, with power in the Governor to allot the same to the
support of the government as its necessities may require
according to existing law."67     The Government of the
Philippine Islands has on occasion followed the principles
enunciated in the Porto Rican decision.
~ 154. Indebtedness.
Philippines.
"That for the purpose of providing funds to construct necessary
sewer and drainage facilities, to secure a sufficient supply of water
and necessary buildings for primary public schools in municipalities,
the Government of the Philippine Islands may, where current taxation is inadequate for the purpose, under such limitations, terms,
and conditions as it may prescribe, authorize, by appropriate legislation, to be approved by the President of the United States, any
municipality of said Islands to incur indebtedness, borrow money,
and to issue and sell (at not less than par value in gold coin of the
United States) registered coupon bonds, in such amount and payable
at such time as may be determined to be necessary by the Government of said Islands, with interest thereon not to exceed five per
centum per annum: Provided, That the entire indebtedness of any
municipality shall not exceed five per centum of the assessed valuation of the real estate in said municipality, and any obligation in
excess of such limit shall be null and void." (Philippine Bill, sec.
66.)
"That no export duties shall be levied or collected on exports from
the Philippine Islands, but taxes and assessments on property and
license fees for franchises, and privileges, and internal taxes, direct
or indirect, may be imposed for the purposes of the Philippine Government and the provincial and municipal governments thereof, respectively, as may be provided and defined by acts of the Philippine
Legislature, and, where necessary to anticipate taxes and revenues,


657 Navarro v. Post (1909), 5 Porto Rico Fed. 61.




666


I-IIILIPPINE GOVERNMENT


bonds and other obligations may be issued by the Philippine Government or any provincial or municipal government therein, as may be
provided by law and to protect the public credit: Provided, however,
That the entire indebtedness of the Philippine Government created
by the authority conferred herein shall not exceed at any one time
the sum of $15,000,000, exclusive of those obligations known as friar
land bonds, nor that of any province or municipality a sum in excess
of seven per centum of the aggregate tax valuation of its property
at any one time." (Philippine Autonomy Act, sec. 11.)
A number of opinions of the Attorney-General and rulings of the Insular Auditor have dealt exhaustively with
the power of municipalities (and by parity of reasoning
of provinces included in the Philippine Autonomy Act) to
borrow money.658 The derivatory conclusions are these:
In the absence of some special authority, a public corporation has no power to borrow money; the special authority
of the Organic Law for the Philippines is negative and
prohibitory in effect; the prohibition that the entire indebtedness of a municipality can not exceed five per
centum (now seven per centum) of the assessed valuation
of the real estate in said municipality (now changed to
the aggregate tax valuation of this property) is absolute,
and any obligation in excess of such limit is null and void;
the rule applies to loans from the central government as
well as from private individuals. "Such limitations have
been found by experience to be necessary to prevent extravagance, are remedial in their nature, are based upon
a wise policy, and ought, therefore, to be construed and
applied to secure the end sought." 659
8ss See Ops. Atty. Gen. P. I., Oct. 21, 1912, Nov. 19, 1912, Dec. 3,
1912, and Dec. 23, 1912; Ruling Insular Auditor, Nov. 19, 1912, etc.
"9 1 Dillon's Municipal Corporations, 5th Ed., p. 546.




BASIC PRINCIPLES             667
REPRESENTATIVE AUTHORITIES.
Thomas M. Cooley, Constitutional Limitations, 7tl
Ed. (1903).
Thomas M. Cooley, Constitutional Law, 3d Ed.
(1898).
Weston Woodbury Willoughby, The Constitutional
Law of the United States (1910).
John W. Burgess, Political Science and Constitutional
Law (1913).
James Parker Hall, Cases on Constitutional Law
(1913).
Pedro A. Paterno, Gobierno Civil de las Islas Filipinas
(1910) Part III.
Teodoro M. Kalaw, Teorias Constitlcionales (1912).
Ignacio Villamor, Tratado de Eleciones, 2d Ed.
(1912).
8 Cyc., pp. 695 et seq., article by George F. Tucker.
6 R. C. L. (1915) pp. 1-485.
Leading cases too numerous to mention.




CHAPTER 10.


PHILIPPINE LAW.
~ 155. Law as here used.
156. Sources and development.
Written-Spanish.
157. Force of laws of former sovereignty.
158. Application of rules.
Written-American-Filipino.
159. General orders of the Military Governors.
160. Acts of the Philippine Commission.
161. Acts of the Philippine Legislature.
162. Codification.
163. Joint and concurrent resolutions.
164. Executive orders, proclamations, rules, regulations, and circulars.
165. Rules of court.
166. The administrative code of the department of Mindanao and
Sulu.
167. Provincial resolutions.
168. Municipal ordinances and resolutions.
So-called unwritten.
169. English and American common law.
170. Spanish common law.
171. Customary law.
172. Mohammedan law.
173. Case law.
174. Legal treatises.
175. Philippine common law.
Construction.
176. Established canons.
A suggestion.
177. Annotate.
~ 155. Law     as here used.-A       title to this chapter
technically correct, to which all would agree, is im668




PHILIPPINE LAW


669


possible.   "Jurisprudence"      is discarded, because, besides being unsettled in meaning, it implies to many in
the Philippines, and elsewhere, merely case-law. "Law,"
while preferable, is a word of diversified signification, to
be found in many senses. The conception of the nature
of law differs according to the views of the respective
schools.
Law 2 as here used does not include organic law-the
fundamental law, taking the place of a constitution, described in the two preceding chapters, and usually studied
in a course on constitutional law. Law as here used
1 "The Germans classify Science of Law (Rechtszuisscnschaft) into
Jurisprudence, on one side, and Philosophy of Law, on the other.
In this scheme, Jurisprudence embraces the concrete elements of
law, while Philosophy of Law deals with its abstract and fundamental side. It is accordingly possible for German writers to consider Jurisprudence not strictly as a science of universal principles,
but as something limited by time or place. They may therefore
speak freely of a Jurisprudence of modern times, or the Jurisprudence
of a particular state. (See Sternberg, Allgemeine Rechtslehre, Part
First, pp. 123, 153; also, the diagram defirlitions of Friedrich (Die
Bestrafung der Motive und die Motive der Bestrafung, 1910) in
Archiv fur Rechts und Wirtschaftsphilosophic, Bd. III, 2, 201.) This
is the usage of the European continent, and especially of France,
where Jurisprudence is practically synonymous with case-law. It
has also found a wide reception in our language." Gareis, Science
of Law, p. 22, note.
"The term Jurisprudence is wrongly applied to actual systems of
law, or to current views of law, or to suggestions for its amendment,
but is the name of a science. This science is a formal, or analytical,
rather than a material one. It is the science of actual, or positive,
law. It is wrongly divided into 'general' and 'particular,' or into
'philosophical' and 'historical.' It may therefore be defined provisionally as 'the formal science of positive law.'" Holland, The
Elements of Jurisprudence, 11th Ed. pp. 12, 13.
"Jurisprudencia Filipina" is the title of the Spanish edition of
the Philippine Reports.
2 See Holland's Jurisprudence, 11th Ed.; W. S. Pattee, The Essential Nature of Law; Wilson, The State, Ch. XIV; Karl Gareis,
Science of Law; 25 Cyc. 163; Black's Law Dictionary; Wood's




670


PHILIPPINE GOVERNMENT


includes the whole system of rules of human conduct,
subordinate to the organic law, of which the courts take
cognizance. It covers both substantive and adjective law,
both written and unwritten law, the subjects of all systems
included in the usual classifications. Comprised within
the term are codes, statutes, legislative resolutions, executive orders, court rules, ordinances, cases, customs,
and treatises.
~ 156. Sources and development.-At least four of
the great legal systems of the world, Canon, Mohammedan, Civil (Spanish), and Common (Anglo-American)
have affected, and still do affect, Philippine Law. Add to
these the native Malay customary law and the independent
military law, and the far removed currents which have
carried legal knowledge to the Islands are discovered.
The Canon law, due to separation of church and state, is
now looked to only in exceptional cases.     The Mohammedan law following Islam into the southern islands of
the Philippines only concerns those of that faith. Customary law is more accepted practise outside the usual cognizance of the judiciary.   And military law both under
Spain and the United States was restricted to those of
that branch. But the two other great streams of the law,
the Civil, the legacy of Rome to Spain coming from
Appeal (1874), 75 Pa. 59. There is no word in the language
which in its popular and technical application takes a wider or more
diversified signification than the word "law." Miller v. Dunn (1887)
72 Cal. 462, 466. The Imperative School regards law as something
commanded by the state (type: Austin). The Historical School
contends that law is an unconscious development, like a language
(type: Savigny). The Sociological School asserts that law is a
complex of social evolution and social elements (type: Post). The
Dogmatic School assumes that law proceeds from a higher authority than the state (type: Augustine). The Rational School finds
the basis of law in reason (type: Cicero). The Metaphysical School
discovers the immutable foundations of law in transcendental reality
(type: Kant). Gareis, p. 12, note.




PHILIPPINE LAW


671


the West, and the Common, the inheritance of the United
States fron  Great Britain coming from the East, have
here in the Philippines met and blended.8
All these various sources of our law do but reflect
Philippine history-Custom-the inherent vitality of native institutions; Canon and Mohammedan-the force of
religious propaganda; Military-the militant glory of the
races; Civil-the milestones of Spanish power; and Comnmon-the democratic progress of the United States.
The American constructive policy was determined by
President McKinley when he recognized the force of the
Spanish municipal law and when in his instructions to
the Commission he stated that "The main body of laws
which regulate the rights and obligations of the people
should be maintained with as little interference as possible. Changes made should be mainly in procedure, and
in the criminal laws to secure speedy and impartial trials
and, at the same time, effective administration, and respect for individual rights." That these instructions have
been followed is shown by the words of the United States
Supreme Court in an opinion by Mr. Justice Day: "Cases
which have come to this court from the Plilippines and
Porto Rico, where we have had occasion to consider the
enactments making changes in the laws of those Islands,
show the disposition of the Executive and Congress not
to interfere more than is necessary with local institutions,
and to engraft upon the old and different system of jurisprudence established by the civil law only such changes
as were deemed necessary in the interest of the people,
and in order to more effectually conserve and protect their
rights." 4 Generally, the foundation of the substantive
law is the civil law, with the adjective law the replica of
Anglo-American statutes.
8 See R. W. Lee, The Civil Law and the Common Law-A World
Survey, XIV Michigan Law Review, Dec., 1915, p. 89.
4Perez v. Fernandez (1906) 202 U. S. 80, 91, 50 L. Ed. 942.




672


PHILIPPINE GOVERNMENT


How strategic a position this is for the Philippines!
The concise, scientific precision and perfection of civil
codification strengthened in its weakest parts by modern
progressive procedural acts. Judge Abreu of the Court
of First Instance has successfully established from legal
history and juridical philosophy that this intermingling
of legal systems is to the advantage of the peoples affected.5 Rome and England, not to mention Quebec,
Louisiana, and the Pacific States, all justify the admirable
results of this policy. "In each of these instances," states
Judge Abreu, "the secret of success has invariably rested
upon two facts: (a) that laws closely interlaced with religion, sentimental feelings, or family relations, were not
superseded, and in case they were it was in a slow and
gradual manner; (b) that laws concerning relations not
regulated before, or granting rights never enjoyed before,
had been freely and promptly imposed. These two facts
exactly repeat themselves, so far as I can observe, in
the Americanization of the Philippine laws." Again he
says, "In the necessary blending of the laws of the Filipinos with the laws of the Americans, it has happened;
First, That when a law of their own was effaced by
further legislation, the American law was better; Second,
That when the Filipinos had one too imperfect to suit
present conditions, the law of the Americans was a necessity." Our present endeavor should be to mould and
develop a strictly Philippine legal system.
With these sources and this outline of development.
before us, we can classify Philippine law for our purJose C. Abreu, The Blending of the Anglo-American Law with
the Spanish Civil Law in the Philippines, III Philippine Law Review,
May, 1914, p. 285. Also Charles S. Lobingier, Blending Legal
Systems in the Philippines, XXXII Review of Reviews, Sept., 1905,
p. 336, and XXI Law Quarterly Review, Oct., 1905, p. 401; and Jorge
Bocobo, Civil Law under the American Flag, I Philippine Law
Journal, January, 1915, p. 284.




PHILIPPINE LAW


673


poses into (1) Written, resolving into (a) Spanish and
(b) American elements, and (2) So-Called Unwritten,
including the common law, case law, and customary law.
We can omit a description of Canon law 6 and Military
law as bound up with the establishments of which a part,
but add a compendium regarding the construction of
statutes.
Written-Spanish.
~ 157. Force of laws of former sovereignty.-History reveals many instances in which conquerors have
permitted the laws of the new territory to remain undisturbed. Lord Bryce says the reason is that "Law is a
tenacious plant, even harder to extirpate than language;
and new rulers have generally had the sense to perceive
that they had less to gain by substituting their own law
for that which they found than they had to lose by irritating their new   subjects." 7  The French law    left in
Quebec and the Spanish-French law continued in Louisiana are modern examples of the wisdom of this course.8
Numerous cases,9 including ones of Philippine origin,
6 See Ecclesiastical Administration, sec. 43, supra.
7 Selected Essays in Anglo-American Legal History, Vol. I, p. 593.
See Reinsch, Colonial Government, Ch. XVIII.
See Exchange Bank v. The Queen (1886) 11 App. Cas. 157;
Wagner v. Kenner (1842) 2 Rob. (La.) 120; C. F. Randolph, Law
and Policy of Annexation, p. 136; Laurel, What Lessons may be
Derived by the Philippine Islands from the Legal History of Louisiana, II Philippine Law Journal, Sept., 1915, p. 91.
9Sir William Scott in The Fauna (1804) 5 Robinson, 106;
Marshall, C. J., in American Insurance Co. v. Canter (1828) 1
Pet. 511, 7 L. Ed. 242; Daniel, J., in Leitensdorfer v. Webb (1858)
20 How. 176, 15 L. Ed. 891; Fuller, C. J., in Ortega v. Lara (1906)
202 U. S. 339, 50 L. Ed. 1055, concerning an article of the Spanish
Civil Code in effect in Porto Rico; Harlan, J., in Alvarez v. U. S.
(1910) 216 U. S. 167, 54 L. Ed. 432, office purchased in Porto
Rico not protected; Lurton, J., in Vilas v. Mhnila (1911) 220 U.
S. 345, 55 L. Ed. 491, concerning the status of Manila; Philippine
P. I. Govt.-43.




674


PHILIPPINE GOVERNMENT


have settled the rules of the public law recognized by the
United States which govern the effect of a change of
sovereignty by conquest or cession upon the laws of the
acquired territory. The primary distinction is between
municipal and political law. "Municipal" is here used in
its more extensive meaning in contra-distinction to international, as that law which regulates the intercourse
and general conduct of individuals-laws intended for
the protection of private rights.1~ "Political" is used to
denominate the laws regulating the relations sustained by
the inhabitants to the sovereign."
The great body of the municipal laws of the acquired
province or country remain in force until abrogated or
changed by the government of the United States. For
example, the inhabitants' rights of property are undisturbed.12 Such municipal law of the former sovereignty
as is inconsistent with the Constitution and laws of the
United States or the characteristics and institutions of
government is at once displaced.
The previous political relations of the inhabitants of
the ceded region are totally abrogated. The political law
pertaining to the prerogatives of the former government
necessarily ceases. "It cannot be admitted that the King
Sugar Estates Development Co. v. U. S. (1904) 39 Ct. Cl. 225;
Trent, J., in Roa v. Collector of Customs (1912) 23 Phil. 315, 330.
See also Lord Mansfield in Campbell v. Hall, Cowp. 204; the late
Mr. Justice Brewer in his article on "International Law,' 22 Cyc.
1729; I Moore, International Law Digest, pp. 304 et seq.; 5 Op.
Atty. Gen. P. I. 510, 542.
10 Marshall, C. J., in American Insurance Co. v. Canter (1828) 1
Pet. 511, 7 L. Ed. 242; Field, J., in Chicago, Rock Island and Pacific
Railway Co. v. McGlinn (1885) 114 U. S. 542, 546, 29 L. Ed. 270;
Bean, J., in Cook v. Port of Portland (1891) 13 L. R. A. 533.
11American Insurance Co. v. Canter (1828) 1 Pet. 511, 7 L. Ed.
242; Roa v. Collector of Customs (1912) 23 Phil. 315.
12 Marshall, C. J., in U. S. z'. Percheman (1833) 7 Pet. 51, 8 L. Ed.
604; Strother v. Lucas (1838) 12 Pet. 410, 9 L. Ed. 1137.




PHILIPPINE LAW


675


of Spain could, by treaty or otherwise, impart to the
United States any of his royal prerogatives; and much
less can it be admitted that they have capacity to receive
or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the
Constitution and laws of its own government and not according to those of the government ceding it. "   Such
political laws of the prior sovereign as are not in conflict
with the Constitution or institutions of the United States
continue in force only if the new sovereignty shall affirmatively so declare.1
The best presentation of the applicalle rules is by Mr.
Justice Field, in amplification of the previous statements
of Sir William Scott and Mr. Chief Justice Marshall, as
follows:
"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 passed from
one government to the other, but private prolperty 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
13Pollard's Lessee v. Hagan (1845) 3 How. 212, 225, 11 L. Ed.
565. E. g. state religion, U. S. v. Balcorta (1913) 25 Phil. 273.
1 Ely's Administrator v. U. S. (1898) 171 U. S. 220, 43 L. Ed.
142; Roa v. Collector of Customs (1912) 23 Phil. 315, 330.




676


PHILIPPINE GOVERNMENT


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 same 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." 15
As a corollary to these principles, the fact that the
transfer of territory from one nation to another brings
in a new system of law makes no difference. So the civil
law in all its mutations will be protected by the United
States, a common law country. "In the future growth
of the nation," the United States Supreme Court once
said, "as heretofore, it is not impossible that Congress
shall see fit to annex territories whose jurisprudence is
that of the civil law. One of the considerations moving
to such annexation might be the very fact that the territory so annexed should enter the Union with its traditions, laws, and systems of administration unchanged. It
would be a narrow construction of the Constitution to
require them to abandon these, or to substitute for a
system which represented the growth of generations of
inhabitants a jurisprudence with which they had had no
previous acquaintance or sympathy." 16
16 Chicago, Rock Island and Pacific Railway Co. v. McGlinn (1885)
114 U. S. 542, 546, 29 L. Ed. 270.
16Holden v. Hardy (1898) 169 U. S. 366, 389, 42 L. Ed. 780;
Hubgh v. New Orleans Railway Co. (1851) 6 La. Ann. 495, 54 Am.
Dec. 565; Chew v. Calvert (1818) Walker's Reports, Miss. 54; and
any number of cases in which the civil law has been upheld.




PHILIPPINE LAW


677


The general rules heretofore described as to the continuation of laws of the acquired territory were followed
for the Philippines by President McKinley in his instructions to General Merritt dated May 19, 1898, namely:
"Though the powers of the military occupant are absolute
and supreme, and immediately operate upon the political
condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person
and property, and provide for the punishment of crime,
are considered as continuing in force, so far as they are
compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and
in practice they are not usually abrogated, but are allowed
to remain in force, and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible,
to be adhered to on the present occasion." 17
The proclamation of General Merritt on August 14,
1898, on the capitulation of the Spanish forces was of
similar tenor.'8
~ 158. Application of rules."9-In the application
of the rules relative to the continuation of Spanish
laws in the Philippines, the courts, as said by Mr. Justice
Moreland, have taken this reasonable view: "The great
7 Off. Gaz. Jan. 1, 1903, p. 1.
18 "The government established among you by the United States
Army is a government of military occupation; and for the present
it is ordered that the municipal laws, such as affect private rights
of persons and property, regulate local institutions and provide for
the punishment of crime, shall be considered as continuing in force,
so far as compatible with the purposes of military government, and
that they be administered through the ordinary tribunals substantially as before occupation; but by officials appointed by the government of occupation."
19 See generally Charles S. Lobingier, The Spanish Law in the
Philippines, 1 Philippine Law Review, March 15, 1912, p. 597, and
Annual Bulletin No. 4, Comparative Law Bureau, July 1, 1914.




678


PHILIPPINE GOVERNMENT


body of our laws is of Spanish origin and comes to us
and is enforced by us upon the theory that it has survived." 8 The basic Spanish laws, the Civil Code, the
Code of Commerce, the Penal Code, and the Mortgage
Law are consequently construed as Codes, as a matter
of course. Only when the applicability of a particular
article of one of these laws is in issue will the courts feel
themselves bound to decide its validity.
A series of cases and opinions have resolved the further
question of what other Spanish laws remained in force
after American occupation.
The Supreme Court of the Philippines, affirmed on
appeal to the United States Supreme Court, held that the
Law of Waters in force in these Islands is the law of
August 3, 1866, and not the law of 1879 of the Peninsula.21 The provisions of the Ley Provisional were said
to be in force in so far as they have not been repealed
or amended by implication by the body of laws enacted
in these Islands since the change from Spanish to American sovereignty.22 The Attorney-General found the penal
provisions of the Spanish Railway Law of 1875 and 1877
as still effective; the Supreme Court also applied this portion of the law.23 The Attorney-General about the same
time carried his ruling further in an opinion to the effect
that the Spanish Railway Law of November 23, 1877,
and the regulations for its execution of September 8,
1878, except as inconsistent with subsequent legislation
embodied in Philippine statute law, or as repugnant to
20 Concurring opinion in Forbes v. Chuoco Tiaco (1910) 16 Phil.
534, 592.
21 Ker & Co. v. Cauden (1906) 6 Phil. 732, 223 U. S. 268, 56
L. Ed. 432 (1912); also Montafio v. Insular Government (1909)
12 Phil. 572. Described by Carlos Tan, Water Rights in the Philippines, II Philippine Law Journal, Oct., Nov., 1915.
22 U. S. v. Fortaleza (1909) 12 Phil. 472, 477.
8 3 Op. Atty. Gen. P. I., 395; 5 Op. Atty. Gen. P. I., 201; U. S.
v. Calaguas (1909) 14 Phil. 739.




PHILIPPINE LAW


679


American institutions or the change fronm Spanish to
American sovereignty, are in full force and effect in the
Philippine Islands.2" Articles 44 to 78 of the Law of
Marriage of 1870 were extended to the Philippines and
with the portions of Las Sicte Partidas concerning divorce
continued in force.25
Whether the Spanish Copyright Law of January 10,
1879, had force after the change from Spanish to American sovereignty has never been definitely settled, although
the weight of authority is in favor of the view that it
was abrogated. This is the conclusion reached by two
Attorneys-General, a Judge of the Court of First Instance
of the city of Manila, a Justice of the Supreme Court, a
well-known text writer, and a member of the Manila bar
in a monograph on the subject.26 Although the question
was brought before the courts, on appeal, the Supreme
Court permitted the case to go off on a question of jurisdiction.t7  The same doubt exists as to the Spanish Mining Law. Mr. Justice Willard expressed the opinion that
it was not in force.28
On the other side, the Supreme Court found the Spanish Military Code no longer operative, presumably because
24 Op. Atty. Gen. P. I., Aug. 30, 1909.
25 De la Rama v. De la Rama (1903) 3 Phil. 34; Ebreo v. Sichon
(1905) 4 Phil. 705; Ibafiez v. Ortiz (1905) 5 Phil. 325; Del Prado
v. De la Fuente (1914) 28 Phil. 23.
26 Attorney-General Araneta, 3 Op. Atty. Gen. 453; Acting Attorney-General Harvey, 4 Op. Atty. Gen. 8; Judge Crossfield, U. S.
v. Yam Tung Way, Court of First Instance, Manila, May, 1910;
Willard's Notes to the Spanish Civil Code, pp. 39, 40; William
Benjamin Hale, Copyright in Porto Rico and the Philippines, II
Philippine Law Journal, January, 1916, p. 268; Charles C. De Selms,
Unpublished Thesis. Likewise Attorney-General of Porto Rico as
to letters patent. Vol. I Ops. 74, 181. But Attorney-General Villamor argued before the courts that the law was in force.
7 U. S. v. Yam Tung Way (1911) 21 Phil. 67.
2s Notes to the Spanish Civil Code, p. 40.




680


PHILIPPINE GOVERNMENT


a political law.9 It decided the Spanish Notarial Act not
to be in existence.80 And it held in another case articles
17 to 27, inclusive, of the Civil Code, dealing with Spanish citizenship, to be political laws and so abrogated.31
Generally, therefore, the following are the Spanish laws
which continued in practical operation after American occupation: Civil Code, Code of Commerce, Penal Code,
Mortgage Law, Ley Provisional, Marriage Law of 1870,
Law of Waters of 1866, and the Railway Law of 1877.
Every one was extensively modified by subsequent legislation. By persistent amendment the Code of Commerce,
the Mortgage Law, and the Law of Waters became but
skeleton Codes,32 and other laws as the Ley Provisional
and the Railway Law were rarely used. By enactment
of Act 190, the Spanish Code of Civil Procedure was
nullified.88
Written-American-Filipino.
~ 159. General orders of the Military Governors.Two General Orders of the Military Governors promulgated to cover omissions of the Spanish legal system were
permanent contributions to the legislation of the Philippines.  "The powers of a Military Governor to issue
orders, decrees, regulations, etc., which have the force of
law in the territory over which he has jurisdiction is
beyond question." 34
General Orders No. 58 of April 23, 1900, according to
its preamble was issued "in the interest of justice, and
to safeguard the civil liberties of the inhabitants of these
9U. S. v. Sweet (1901) 1 Phil. 18.
o Bagsa v. Nagramada (1908) 11 Phil. 174.
81 Roa v. Collector of Customs (1912) 23 Phil. 315.
82 See Espiritu, Notes on the Code of Commerce; Tan, Philippine Water Rights, II Philippine Law Journal, Nov., 1915, p. 192.
88Legaspi v. Aguilar (1908) 12 Phil. 353.
84Duarte v. Dade (1915) XIII O. G. 2006, 2009.




PHILIPPINE LAW


681


Islands."  The one hundred and ten brief sections constitute a complete Code of Criminal Procedure. This
Code secures to the accused all the rights to which he is
usually entitled in the United States except trial by jury.
It introduced the writ of habeas corpus.     Mr. Chief
Justice Arellano has said of General Orders No. 58:
"This law, based upon the accusatory system, has abolished the inquisitorial period so derogatory of the rights
of the accused, and which was the foundation of our
former criminal procedure; the time formerly taken up
by this inquisitorial system without the right of intervention on the part of the accused, which at times would be
prolonged for years, dependent upon the difficulty of investigation, has been saved; the long period of preventive
punishment suffered by many persons during the long
summary examination is now avoided, which said examination was carried on for the purpose of investigating the
commission of a crime and whetler any person was guilty
thereof; the new procedure provides for complete equality
between the accuser and the accused, between prosecution
carried on by the government aind the defense of his
personal liberty and security interposed by the defendant;
a brief proceeding, which becomes and is public from
its initiation, fully provides all that is necessary for a
complete defense, and is an absolute safeguard of personal security; this undoubtedly, is the greatest benefit
conferred upon the inhabitants of this country." s6
The Code of Criminal Procedure alluded to by the
Supreme Court as "the notably short, compact and con36 Report, Military Governor, 1900, App. AA, GG; Le Roy,
The Americans in the Philippines, Vol. II, pp. 279, 280 (Note).
General Crowder who helped draft the law summarizes the changes
as follows: "(1) The requirement of a specific complaint or information, charging but one offense; (2) preliminary examination
with witnesses, with immediate decision as to holding the prisoner,
abolishing the interminable and secret suntario; (3) the right of




682


PHILIPPINE GOVERNMENT


cise military order" " has met the test of experience well.
The Legislature has had to amend or supplement it in
but minor particulars. Prosecuting officials and members
of the bar have found it all sufficient in practice. Former
Secretary of Finance and Justice Araneta says that "this
reform has met with general approval and applause, and
is looked upon as one of the most positive benefits obtained from the government established in these
Islands." 87
General Orders No. 68 of December 18, 1899, as
amended by General Orders No. 70, series of 1900, is the
other law issued by the Military Governor which should
not be left unmentioned.38 Liberty of marriage was
there recognized. Civil marriage was regulated.
~ 160. Acts of the Philippine        Commission.-For
practically seven years-from September 1, 1900, to
being confronted by the witnesses, of cross-examination, of compulsory attendance of witnesses for defense, of exemption from
testimony against one's self-all the methods of the open trial,
in place of the secret or semi-secret procedure of the Civil-Law
countries, and the right also of appeal in all cases; (4) the privilege of demurring to an insufficient complaint and of pleading a
former judgment or jeopardy; (5) the right of the joint defendants to be tried separately; (6) the right of new trials in
case of errors of law or newly discovered evidence;  (7) the
extension of such procedure, in a simple form, to justices' courts;
(8) the making of all persons, including defendants, competent
witnesses, instead of excluding the accused and his relatives and
employees; (9) the evidence to be relevant and the best of which
the case might be susceptible, doing away with the former free
admission of hearsay evidence;   (10) introducing the specific
remedy of the habeas corpus writ, instead of the theoretical assurance in the Spanish law of a 'speedy trial;' (11) safeguarding
the issuance and execution of search-warrants." Le Roy, Id.
8 U. S. v. De Guzman (1915) XIII O. G. 1173, 1174.
87 Organization of Police and Judiciary, Cablenews-American
Yearly Review Number, 1911, p. 32.
88 See Ramos, Marriage: Forms, Celebration, and Legal Consequences, p. 92.




PHILIPPINE LAW3


683


October 16, 1907-the Philippine Commission was the
sole legislative body of the Islands.  As during this
period there was an American majority on the Commission, and as these Commissioners were simultaneously
heads of Executive Departments, the laws enacted were
consequently those which according to American minds
were thought wise for the proper government of the
Islands, and which usually were found necessary by
reason of administrative experience. Naturally, therefore, American precedents were mainly taken and adapted
to Insular conditions.
Exactly 1800 Acts were enacted by the Commission.
About 100 of these were pushed through in the last
month and a half preceding the inauguration of the
Philippine Assembly. Some Acts of the Philippine Commission we noticed in describing the early work of the
Second Philippine Commission.8 Others we take up
under special topics. Many were private, special, temporary, or local in nature. Dr. Barrows critically observes that "the bulk of the acts... passed by
the Commission during the period of its sole legislative
authority, from 1900 to 1907, are not laws or lois in the
French sense, but minor amplifications, suspensions, or
administrative adjustments properly forming the field of
executive ordinances or decrees." 89  All that were
thought to constitute general and permanent legislation
were printed in the "Compilation of the Acts of the
Philippine Commission." Here can be found laws of
great importance which it would be wearisome to describe, but certain of which can at least be mentioned.
A subject which required close attention from the
Commission was local government. With this end in
view the Municipal Code (Act 82), the Provincial Gov89 See sec. 72, supra.
89a The Governor-General of the Philippines, XXI Am. Hist. Rev.,
Jan., 1916, p. 306.




684


PHILIPPINE GOVERNMENT


ernment Act (Act 83), the Manila Charter (Act 183),
the Special Provincial Government Act (Act 1396), and
the Township Government Act (Act 1397) were enacted
after grave study and investigation. Later and still under
its exclusive jurisdiction, the Commission passed the
Baguio Charter (Act 1963) and the Organic Act for the
Department of Mindanao and Sulu (Act 2408). The
earlier laws pertaining to local government, particularly
the Municipal Code, were repeatedly amended. Of a
similar strictly administrative character was the Reorganization Act (Act 1407), the Civil Service Law (finally revised as Act 1698) and the Election Law (Act
1582).
Fiscal matters received attention in the Customs Administrative Act (Act 355), the Internal Revenue Law
(Act 1189 since revised) and the Accounting Act (Act
1792 as revised).  The professions-Law, Medicine,
Pharmacy, and Dentistry-were regulated. Commercial
development was encouraged and regulated by the Mining
Law (Act 624), the Trade Mark Law (Act 666), the
Public Land Law (Act 926), the Friar Land Act (Act
1120) and the Forest Act (Act 1148). Health of individuals was protected in the Pure Food Law (Act 1655)
and of animals in Acts 1147 and 1760.
The subjects, of possibly the most interest concerning
which the Commission took action, are those which touch
the judiciary and the Spanish codes, especially procedure.
Act 136 provided for the organization of the courts.
Various Acts amplified the Penal Code. The Corporation Law (Act 1459) and the Chattel Mortgage Law
(Act 1508) vitally modified the Spanish substantive law.
The Torrens System   repealing much of the Spanish
Mortgage Law was brought in by Act 496, copied substantially from the Massachusetts law of 1898.'4
40 See City of Manila v. Lack (1911) 19 Phil. 324; Alba v. De la
Cruz (1910) 17 Phil. 49; De Jesus v. City of Manila (1914)




PHILIPPINE LAW


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The greatest contribution to the jurisprudence of the
Islands was a Code of Civil Procedure, enacted after full
public discussion on August 7, 1901, as Act 190. Governor Taft writing shortly after the Code went in force
said: "The Spanish code of procedure was so full of
technicalities as practically to deny justice to the litigant,
and the Filipino bar were unanimous in a demand for a
change. Judge Ide has drafted the code, and I believe
that American lawyers who consult it will testify to the
excellence of his work." 41 The Code follows closely the
laws and codes of California, Vermont, Georgia, Massachusetts, Mississippi, and   Ohio.'4    "The   California
Code," the Chief Justice has said, "is its true legal precedent." 43 Matters in the Code which to the Commission
in its annual report for that year     seemed most important were the radical departure from the Spanish procedure; challenging of judges and other court officials is
abrogated; civil liability of judges and justices of the
peace for error in their judicial determination is done
away with; and the sittings and proceedings of every
court of justice are made public except when testimony is
of an indecent character such as to require the exclusion
of the public in the interest of morality.
~ 161. Acts of the Philippine Legislature.-In volume, the Acts of the Philippine Legislature, constituted by
the Philippine Assembly and the Philippine Commission,
together with Acts of the Commission passed by it under
XIII 0. G. 130; Enrique Altavas, Systems of Land Registration in
the Philippines, III Philippine Law Review, Jan., 1914, p. 126.
41 Wm. H. Taft, Civil Government in the Philippines, 71 Outlook,
May 31, 1902, p. 305, printed in his "The Philippines," p. 64.
42 See the Code of Civil Procedure as compiled, including citations
to the known origin in the State Codes of the various sections.
4 Yapgco v. Rhode (1902) 1 Phil. 404, 410.
^Report 1901, Vol. I, pp. 86-90. See further Public Session
Minutes of the Philippine Commission, 1901, pp. 734 et seq., 861
et seq.




686


PHILIPPINE GOVERNMENT


its exclusive jurisdiction, have brought the number up to
over 2600. These fill nine bulky books of Public Laws.
The Philippine Assembly signalized its inauguration
by the introduction and passage of the Gabaldon Act, appropriating one million pesos for barrio schools. Interest in education was thereafter continuously manifested
especially by an Act (1870) authorizing a University of
the Philippines. But it was natural that much of the
work accomplished by the Philippine Commission should
not be deemed satisfactory or should have become obsolete because of the passage of time. Accordingly we find
various amendments of the Election law, revision of
prior laws, as Internal Revenue (Act 2329), judicial and
health reorganization (Acts 2347 and 2468), and an Administrative Code (Act 2657). It was natural also that
love for the native land should find expression in the
passage of patriotic laws, such as one authorizing a
Pantheon of Illustrious Filipinos (Act 1856), another
the purchase of the books of Rizal (Act 2021), and still
another approving a plan for a national capital (Act
1841).
A creative tendency, which deserves special praise, and
which was not ashamed to adopt legislation indorsed by
such bodies as those on uniformity of laws, was shown.
Thus there were established a Bureau of Labor (Act
1868), a Board of Public Utility Commissioners (Act
2307), a Philippine National Library (Act 2572), and a
Philippine National Bank (Act 2612). Progress was indicated in the enactment of such modern laws as a
Bankruptcy and Insolvency Law (Act 1956), the Negotiable Instruments Law (Act 2031), the Warehouse
Receipts Law (Act 2137), the Irrigation Law (Act
2152), a Motor Vehicle Law (Act 2159), the Registration
and Protection of Patents (Act 2235), the Cadastral
Act (Act 2259), a Fiber Inspection Law (Act 2380), the




PHILIPPINE LAW


687


Insurance Act (Act 2427), and the Usury Law (Act
2655).
~ 162. Codification.-If the Spanish   Codes, the
General Orders of the Military Governors, and the Acts.
of the Philippine Commission and Legislature were analyzed, Philippine law would be disclosed as in the following tumultuous condition: Civil Law, found principally in
the Civil Code, the Law of Waters, the Code of Civil
Procedure, the Mortgage Law, the Chattel Mortgage
Law, General Orders No. 68, and the Irrigation Law;
Cotmmercial Law in the Code of Commerce, the Corporation Law, the Insolvency Law, the Negotiable Instruments Law, the Warehouse Receipts Law, and the Insurance Act; Criminal Law in the Penal Code and the
various penal Acts of the Philippine Commission and
Legislature; Political Law in a multitude of statutes including seven special local and provincial charters; and
Remedial Law in the Code of Civil Procedure, Code of
Criminal Procedure, Ley Provisional, and the Land Registration Law.4b The ancient mingled with the modern
and substantive joined with adjective was the graphic but
intolerable picture.
The wisdom of retaining much of the Spanish Civil
Law and of engrafting only necessary additions was cQnceded. But in practice the result was that the courts
and the bar have never been certain as to what the law
is. Very seldom has the Legislature expressly repealed
inconsistent statutes. To ascertain in any particular instance whether there is an implied repeal is difficult
enough, but to find whole chapters and titles affected, to
be required to harmonize antagonistic systems, and not to
be able to get court decisions at will was an impossible
45 In extenso outline in Laurel, What Lessons may be derived by
the Philippine Islands from the Legal History of Louisiana, II Philippine Law Journal, Sept., 1915, p. 63.




688


PHILIPPINE GOVERNMENT


situation. One very able Justice of the Supreme Court
endeavored to indicate what portions of the Spanish Civil
Code were still in force.'6 Another lawyer of long experience went through the Civil Code for the same purpose and accepted about half of the commentaries of the
Justice as correct. Each lawyer or judge was entitled to
his own particular guess.
As temporary expedients portions of the laws were
compiled. As the Compilation Committee reported "the
first step toward the final revision and codification of all
the laws of the Philippine Islands" was taken in the printing of the Compilation of the Acts of the Philippine
Commission. Also the Charter and Revised Ordinances
of the city of Manila, the Election Law, the Corporation
Law, the Municipal Code and the Provincial Government
Act, the Public Laws of the Legislative Council of the
Moro Province, the Penal Code, the Code of Civil Procedure, and other laws were compiled and annotated.
Some of these were not official. All were at most merely
useful reference books. The need was, as in Louisiana,
for conservative adaptation rather than hasty innovation.
The need was, as in Porto Rico, for something more than
compilation-for careful, permanent revision and
codification.7
Act 1941 going into operation in 1909 and 1910 created "a code committee composed of a president and four
members for the purpose of revising the Civil, Commercial, Penal, and Procedure Codes which have been in
force to date and the Mortgage and Land Registration
Acts, and to prepare new codes upon said matters in accordance with modern principles of the science of law
46 Willard's Notes to the Spanish Civil Code.
47 For Porto Rico, see Rowe (a member of the Code Committee)
the United States and Porto Rico. For Louisiana, see Wigmore
Louisiana: The Story of its Legal System, I Southern Law Quarterly,
January, 1916, p. 1.




PHILIPPINE LAW


689


and with the customs of the country."  (Sec. 1.)"8 The
Committee was also authorized "to revise, compile, and
codify the existing general statutes of the Philippine
Commission and Philippine Legislature and to report the
same so codified to the Legislature for adoption as the
revised statutes of the Philippine Islands."  (Sec. 7.)
In somewhat bungling language the purpose appears to
have been to have all Philippine law revised and codified
in new codes.
The Code Committee took as the bases of its work that
there should be four codes: Political Code (later changed
to Administrative Code), Civil Code, Penal Code (later
changed to Correctional Code) and Remedial Code, to
embrace all general laws, and a fifth book for special and
local laws.'9 The plan of the Committee provided that
the Administrative Code was to contain the public laws,
or the laws relating to governmental constituents, organization and administration, including public property,
revenues, work, education, health and morals; the Civil
Code, the private laws or the laws governing private persons, and their inter-relations, property, and obligations;
the Correctional Code, the laws relating to crimes and
punishments; the Remedial Code, the laws relating to relief, and to procedure in civil and criminal cases, including
the law of evidence; and the Special and Local Laws, the
laws not included in the foregoing codes. The scheme
has been adhered to quite generally.
The Administrative Code very properly takes the great
mass of institutional Acts and arranges them in a code.
The Code is divided into four grand divisions. Book I
treats of the organization, powers, and general adminis4 Code Committee described by Pamatmat, II Philippine Law
Journal, Nov., 1915, p. 179.
4 Plan of Oct. 18, 1909. See W. L. Goldsborough (a member of
the Code Committee), Mechanics of Codification, XXV Green Bag,
Dec., 1913, p. 496.
P. I. Govt.-44.




690


PHILIPPINE GOVERNMENT


tration of the Philippine Government; included therein
are the executive power, the legislative power and the
judicial power, government service and employment in
general, and taxation. Book II concerns the organization
and administration of Bureaus; these are considered by
departments. Book III is entitled "Government of Provinces and other political divisions;" this covers provincial
governments, municipalities, townships and settlements,
chartered cities (the city of Manila and the city of
Baguio), and the Department of Mindanao and Sulu.
Book IV is the "penal supplement."
The preparation of the Civil Code required mainly a
careful joinder of acts of American origin with the
Spanish Civil Code and the remnant of the Spanish Commercial Code in one scientifically arranged whole. The
Philippine Commission in its report for 1901 said that
"it is the intention of the Commission, as soon as practicable, to make a complete revision" of the Spanish laws
governing business transactions "into a single Civil Code,
but without changing the fundamental principles of the
Civil Law which here prevailed." 6 A leading authority on
the Civil Law quite similarly says that "If the conflicting
differences between the local and common law, peculiar
to Spain and which have little force in... the
Philippines are eliminated from the Spanish Civil Code,
and a few amendments in harmony with United States
institutions are substituted for the provisions which relate
to monarchial institutions, then would result, in the opinions of those familiar with the subject, a most excellent
code suitable for the people of the Philippines." 51 The
plan of the Code Committee is concordantly to leave
fundamentals unchanged. The Civil Code is divided into
five books: Book I, Persons; Book II, Family Rights;
0 Report 1901, Vol. I, p. 91.
l5 Walton's Civil Law in Spain and Spanish-America, p. 112.




PHILIPPINE LAW


691


Book III, Property; Book IV, Successions; Book V, Obligations and Contracts (including donations).
The need of a new code to take the place of the Penal
Code with its harsh penalties, its recognition of monarchial forms, and its unbending rules has long been recognized.61a A new Criminal Code was prepared as early
as 1901 but was never acted upon. The Correctional
Code prepared by the late Rafael del Pan shows, by its
name, a purpose to advance with the science of Criminology and Penology. The author investigated widely
all the leading penal systems of the world. His great
idea was to present a Code which would relegate into the
past antiquated notions of revenge upon the criminal in
order to provide a modern system of reform. The Correctional Code will stand as a monument to his erudition
and progressiveness.
The Remedial Code continues the Codes of Criminal
Procedure and Civil Procedure and numerous procedural
acts with little change. The Code of Criminal Procedure
has never been found wanting. The Code of Civil Procedure has been criticized as defective and as lacking in
method and symmetry. Curing manifest defects, omitting duplications, but not disturbing established precedents was the intent in preparing the Remedial Code. It
is divided into three parts: General Matters, such as organization of the courts, jurisdiction, venue, attorneys at
law, and evidence; Civil Procedure; and Criminal Procedure.
As this book goes to press only the Administrative
Code (Act 2657) has been passed by the Philippine Legislature. It is thus too early to anticipate results. Is it too
much to hope, however, that Philippine amalgamation
will come out of the crucible of codification and legislation as flawless as the Codes of our nearest prototypesPorto Rico and Louisiana?


51a See 42 Am. Law Rev., Jan., Feb., 1908, p. 116.




692


PHILIPPINE GOVERNMENT


~ 163. Joint and concurrent resolutions.-Every
session sees a number of joint and concurrent resolutions
passed by the Philippine Legislature. The first action
of the Philippine Legislature took the form of a Joint
Resolution "conveying to the President of the United
States and through him to Congress and the people of
the United States the gratitude of the people of the Philippine Islands and the Philippine Assembly and their
high appreciation of the privilege conceded to them of
participating directly in the making of the laws which
shall govern them." 62 The general subjects covered in
such resolutions have related to appointments of special
committees, instructions to the Resident Commissioners,
petitions  to  Congress,  validation  of  action,  and
adjournments.
As there are no constitutional restrictions relative to
the form which Philippine statutes shall take, a resolution
might here lay down a rule of conduct having the effect
of law. Usually, however, as in other jurisdictions, a
resolution proper would express merely an opinion or desire of the legislative body, or take that method by which
to govern its own procedure.5s
~ 164. Executive orders, proclamations, rules, regulations, and circulars.-The European practice of
confining a statute to a declaration of principles or policy
and authorizing the development of details by "Orders in
Council" or decrets of the Executive is coming to be
popular.56' The Philippine Legislature has in various
Acts delegated the power to carry laws into effect to dif52 Printed in Volume 7, Public Laws, p. 337.
5s Compare Swann v. Buck (1866) 40 Miss. 268, and San Antonio
v. Micklejohn (1895) 89 Tex. 79.
58a See Barrows, The Governor-General of the Philippines, XXI
Am. Hist. Rev., Jan., 1916, pp. 306-308.




PHILIPPINE LAW


693


ferent executive officials."4 In other instances this authority has been assumed by heads of governmental offices
under some inherent right which it is hard to place.
Within the official sphere affected and often as affecting
the public, such executive action is controlling, and may
usually be considered as a law."6
Executive rules, Professor Willoughby observes, fall
into two general classes-"First, those established by an
administrative superior and directed solely to the administrative inferior; secondly, those binding of course
the administrative inferiors, but primarily directed to the
private citizen, and fixing the manner in which the requirements of the statute are to be met by him.   This
second class of rules is, in turn, divisible into two classes;
those to which a criminal penalty is attached for their
violation, and those merely defining the manner in which
rights created by the statute are to be enjoyed. The first
of these two main classes of administrative ordinances
differ from those of the second class in that though valid
as between the administrative superior and his inferior,
they do not create legal rights which the private citizen
may enforce in the courts....  As to those rules
or ordinances, established by executive agents, providing
the modes under which private persons may receive the
privileges granted by law or be held responsible for violations of the duties imposed therein, it may in general
be said that the executive may establish all special regulations that fall within the general field of the authority
granted by law, and which are reasonably calculated to
secure the execution of the legislative will as laid down
54 See sec. 118 supra for discussion of constitutional right of
Legislature to delegate authority to administrative officials.
s5Olsen & Co. v. Herstein (1915) XIV O. G. 166; Chun Toy v.
Insular Collector of Customs (1915) XIII O. G. 2206; Villata v.
Stanley (1915) XIV O. G. 170.




694


PHILIPPINE GOVERNMENT


in the statutes." 6 Mr. Justice Moreland, considering
Executive Order No. 41 of the Insular Collector of Customs, found it to be of the first class because "it is nothing
more or less than a command from a superior to an inferior." He further said:
"It creates no relation except between the official who
issues it and the official who receives it. Such orders,
whether executive or departmental, have for their object
simply the efficient and economical administration of the
affairs of the department to which or in which they are
issued in accordance with the law governing the subjectmatter. They are administrative in their nature and do
not pass beyond the limits of the department to which
they are directed or in which they are publisled, and,
therefore, create no rights in third persons. They are
based on, and are the product of, a relationship in which
power is their source and obedience their object. Disobedience to or deviation from such an order can be
punished only by the power which issued it; and, if that
power fails to administer the corrective, then the disobedience goes unpunished. In that relationship no third
person or official may intervene, not even the courts. Such
orders may be very temporary, they being subject to instant revocation or modification by the power which published them. Their very nature, as determined by the
relationship which produced them, demonstrates clearly
the impossibility of any other person enforcing them
except the one who created them. An attempt on the
part of the courts to enforce such orders would result not
only in confusion but, substantially, in departmental anarchy also." 57
The Governor-General is expressly authorized by section 79 of the Administrative Code to make effective his


s6 Willoughby on the Constitution, Vol. II, pp. 1325 et seq.
57 Olsen & Co. v. Herstein, Id.




PHILIPPINE LAW


695


"administrative acts and commanls" by executive orders
or proclamations. He annually issues over one hundred
executive orders and numerous proclamations. In compass, they yearly make a fair sized volume. Many are
merely formal and ministerial in character.  Some of
the matters most frequently taking the form of executive
orders or proclamations are reservations of public lands,
confirmations of elections, calling special elections,
promulgating laws or resolutions, publishing proclamations of the President, naming boards and committees,
creating or transferring barrios and municipalities, and
announcing holidays.
An infinite variety of orders, rules, regulations, and
circulars are promulgated by the Secretaries of Departments and heads of Bureaus. Of these there can be mentioned off hand circulars of the Executive Secretary, the
Civil Service Rules prepared by the Bureau of Civil Service and approved by the Governor-General, the provincial
division circulars of the Bureau of Audits, a constabulary
manual, regulations and circulars of the Bureau of
Health, animal regulations and orders of the Bureau of
Agriculture, circulars of the Bureau of Internal Revenue,
rules of the Board of Public Utility Commissioners, land
and forestry regulations, and customs rules, regulations,
and circulars. The list is of course no where near inclusive, for there is practically no government office but
which takes such action in some form.
~ 165. Rules of court.68-The Judiciary Organization Act provided that "The judges of the Supreme
Court shall make all necessary rules for orderly procedure
in the Supreme Court and Courts of First Instance, and
courts of justices of the peace, and for the admission
of lawyers to the practice of the law before such courts,
in accordance with the provisions of the Code of Civil


68 See generally 7 R. C. L. 1023 et seq.; 11 Cyc. 739 et seq.




696


PHILIPPINE GOVERNMENT


Procedure, which rules shall be uniform for all the
courts of the same grade, and binding upon the several
courts; but the judges of the Supreme Court may at any
time alter or amend such rules." 69 The Code of Civil
Procedure, in its section 6, restates the same idea as follows: "The judges of the Supreme Court shall prepare
rules regulating the conduct of business in the Supreme
Court and in the Courts of First Instance. The rules
shall be uniform for all Courts of First Instance throughout the Islands. Such rules, when duly made and promulgated and not in conflict with the laws of the United
States or of the Philippine Islands, shall be binding and
must be observed, but no judgment shall be reversed by
reason of a failure of the court to comply with such rules
unless the substantial rights of a party have been impaired by such failure." Chapter II of the Code of Civil
Procedure authorizes general or special rules to be formulated by the Supreme Court for the conduct of bar
examinations.
By virtue of power having the force of organic law
which could be added to but not taken away,60 the Supreme Court promulgated "Rules of the Supreme Court
of the Philippines," "Rules for the Examination of Candidates for admission to the practice of law," and "Rules
of the Courts of First Instance, Philippine Islands." 61
These rules, as the Supreme Court itself has said, "are
few and simple." However, "They are the laws of the
court and must be obeyed until repealed, unless it can be
shown that they are in conflict with the laws of the
United States or of the Philippine Islands." 62
9 Act 136, sec. 28.
60 Philippine Bill, sec. 9; In re Guarifia (1913) 24 Phil. 37.
61 Rules printed in Volume VII Phil. Rep., pp. VII-XXI, later
amended.
62 Paterno v. City of Manila (1910) 17 Phil. 26, citing cases.




PHILIPPINE LAW


697


Rules of Court promulgated by authority of law, and
not in conflict with law, have the effect of law." Rules
of Court not.put in force as provided by law or not in
accord with the provisions of the statutes, or unreasonable or deprivatory of legal rights, are of no force.'
~ 166. The administrative code of the department
of Mindanao and Sulu is a compilation of the Acts of
the former Legislative Council of the Moro Province,
and of the executive orders, circulars, and regulations
issued thereunder, revised and modified to conform        to
the Organic Act for the Department of Mindanao and
Sulu.65  Further rules and regulations and instructions
necessary to carry the Code into effect are appended. The
Administrative Councillof the Department, with the approval of the Governor-General, amends the Code from
time to time.
The Governor of the Department of Mindanao and
Sulu, with the approval of the Administrative Council,
is also authorized to make and prescribe rules for the
general welfare.66
s Inchausti v. De Leon (1913) 24 Phil. 224, 226; 11 Cyc. 739 et
seq.
64 Song Fo v. Veloso (1914) 26 Phil. 575, holding that the rule of
practice which is alleged to be in force in the Court of First Instance
of Manila whereby the clerk is directed to "place on the trial calendar
all causes pending and at issue" and that in such cases "Notice of
trial will not be sent to attorneys or litigants, and failure to receive
said notices will not be considered an excuse for non-appearance,"
has never been put in force under the provisions of section 6 of Act
190; is not of uniform application throughout this jurisdiction;
and is in direct conflict with the practice followed in many of the
courts throughout the Islands. See also 11 Cyc. 740.
65 Code authorized by Act 2408, sec. 55. See also sec. 27 (j), Act
2408, and sec. 2564, Adm. Code. These laws have the effect of
continuing "existing legislation." Acts of Legislative Council enacted pursuant to Act 787, secs. 12, 13.
6Act 2408, sec. 8 (s).




698


PHILIPPINE GOVERNMENT


~ 167. Provincial resolutions.-Provincial boards
issue resolutions or take action under another name having the same effect.67
~ 168. Municipal ordinances and        resolutions.68 -All of the local governments, the city of Manila, the city
of Baguio, and the municipalities and the townships are
authorized by the Legislature to enact ordinances and
resolutions, although the more general term "regulation"
is also used. The city of Manila compiles its ordinances
as "The Revised Ordinances of the City of Manila."
Municipal ordinances are local laws prescribing a general and permanent rule.69     Resolutions only differ in
being of a special or temporary character ordinarily enacted with less formality.70  Both ordinances and resolutions are as binding upon the people within the municipality, but not beyond it, as are the Acts of the Legislature within the Philippines.71
So-called unwritten.
~ 169. English and American common law.-What
is common law? Chancellor Kent defines it as "those
principles, usages and rules of action applicable to
the government and security of persons and property,
which do not rest for their authority upon any express
and positive declarations of the will of the legislature." 72
67Act 83, sec. 13, as amended; Act 1396, sec. 17, as amended;
Act 2408, art. 11.
68 See sec. 144, supra.
9 Citizens Gas & Mining Co. v. Elwood (1888) 114 Ind. 332;
Southern Pacific R. Co. v. Western Pac. R Co. (1906) 144 Fed.
160, 181; Trinidad v. Sweeney (1905) 4 Phil. 531.
70 Blanchard v. Bissell (1860) 11 Ohio St. 96; Cape Girardeau v.
Fougeu (1888) 30 Mo. App. 551.
71 New Orleans Waterworks v. New Orleans (1896) 164 U. S.
471, 41 L. Ed. 518; 4 Op. Atty. Gen. P. I. 84.
72 Kent's Comm. 469. A definition of "common law" sanctioned
by the United States Supreme Court is as follows: "As distinguished




PHILIPPINE LAW


699


But the term  "common law" is used in many equivocal
senses. Possibly we can do no better than to think of
English and American coImmon law as the whole body
of law observed by English speaking countries as distinguisled from   Rolan or civil law.    In the United
States the common law exists as such in the several states
rather than as a body of Federal common law.
For about eleven years the Attorney-General and the
courts of the Philippines had followed Anglo-American
precedents in the nature of common law without apparently considering to what extent those authorities were
binding.73  In 1912 both the Attorney-General and the
Supreme Court on independent questions saw fit to lay
down rules as to the weight to be given English and
American common law in the Philippines.
In the case of United States v. Cuna,74 the Supreme
Court was called upon to decide whether the provisions
of section 33 of Act 1761 which in express terms repealed Act 1461 should be construed so as to deprive the
courts of jurisdiction after the date when the repealing
Act went into effect, to try, convict, and sentence persons guilty of violations of Act 1461, committed prior
to that date.  There was no doubt that "under the general principles of the common law, the repeal of a penal
from law created by the enactment of legislatures, the common
law comprises the body of those principles and rules of action
relating to the government and security of persons and property,
which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the
courts recognizing, affirming, and enforcing such usages and customs;
and, in this sense, particularly the ancient unwritten law of England."
Black's Law Dictionary, p. 332, quoted with approval in Western
Union Telegraph Co. v. Call Publishing Co. (1901) 181 U. S. 92, 45
L. Ed. 765.
73 As in U. S. v. Vallejo (1908) 11 Phil. 193.
7412 Phil. 241 (1908). Followed in Arnedo v. Llorente (1911)
18 Phil. 257, and other cases.




700


PHILIPPINE GOVERNMENT


statute operates as a remission of all penalties for violations of it committed before its repeal, and a release from
prosecution therefor after said repeal, unless there be
either a clause in the repealing statute, or a provision of
some other statute, expressly authorizing such prosecution." 7" But the Supreme Court declined to be bound by
this rule, Mr. Justice Carson saying in his opinion that
"neither English nor American common law is in force
in these Islands, nor are the doctrines derived therefrom
binding upon our courts, save only in so far as they are
founded on sound principles applicable to local conditions, and are not in conflict with existing law."
About the same time as has been said, Attorney-General Araneta made similar deductions, together with a
further point that the common law as understood in the
United States "has not by legislative enactment been
adopted or made applicable in these Islands." 76 The
Attorney-General's view was as follows:
"We cannot say with certainty that the courts of the
Philippine Islands will, in the absence of a statute, be
guided by the common law. It has been said that the
common law is expanded slowly and carefully by judicial
decisions based on a standard of justice derived from
the habits, customs, and thoughts of a people, and by
this standard doubtful cases are determined; that the office of the judge is not to make the common law but to
find it, and when it is found to affix to it his official mark
by which it becomes more certainly known and authenticated. The announcement of the law comes from the
courts after they have had the benefit of the learning of
counsel, which to be comprehensive and useful must embrace a knowledge of the people and their customs as
76U. S. v. Reisinger (1888) 128 U. S. 398, 401, 32 L. Ed. 480,
quoted by court.
764 Op. Atty. Gen. P. I. 510, 511. But see section 302, Code of
Civil Procedure, mentioning "the unwritten law."




PHILIPPINE LAW


701


well as a knowledge of the principles established by prior
decisions.  It is, therefore, reasonable to assume that
the courts of the Philippine Islands in cases not controlled by statute will lay down principles in keeping with
the common law, unless the habits, customs, and thoughts
of the people of these Islands are deemed to be so different from the habits, customs, and thoughts of the people
of England and the United States that said principles may
not be applied here."
Such conclusions find strong support in the historic and
juridical facts relating to the adoption and application
of the English common law in the United States. The
courts of the United States unite in finding that the entire
body of English common or unwritten law has been
adopted and is in force in most of the states so far as applicable to their conditions and surroundings and not
changed by statute, but no farther.7  Moreover, it could
have been added that it is now a much modified common
law, coming even to approach the exactness and symmetry
of the civil law.
Critically contrasted with the doctrine established in
the United States, our Supreme Court and the AttorneyGeneral appear in their quoted opinions to have stated the
exceptions to the rule rather than the rule itself. Times
without number American and English cases are cited
and applied by the Attorney-General and the Insular
courts. And this is inevitable when we remember the
following: The United States Supreme Court has held
that it is "settled that the guaranties which Congress has
extended to the Philippine Islands are to be interpreted
as meaning what the like provisions meant at the time
when Congress made them applicable to the Philippine
77Van Ness v. Pacard (1829) 2 Pet. 137, 7 L. Ed. 374; U. S. v.
Reid (1851) 12 How. 361, 13 L. Ed. 1023; 8 Cyc. 377. See also as
to common law in the territories Mormon Church v. U. S. (1890)
136 U. S. I, 34 L. Ed. 478; 8 Cyc. 386, note 22.




702


PHILIPPINE GOVERNMENT


Islands." 78 So the great cases construing basic principles
of Republican government and constitutional rights have
the same weight here as in the United States. Again,
our Supreme Court, speaking through the same Justice
that wrote the Cuna opinion, in a later decision said that
"While it is true that the body of the common law as
known to Anglo-American jurisprudence is not in force
in these Islands, 'nor are the doctrines derived therefrom
binding upon our courts, save only in so far as they are
founded on sound principles applicable to local conditions,
and are not in conflict with existing law' (U. S. v. Cuna,
12 Phil. Rep. 241); nevertheless many of the rules,
principles, and doctrines of the common law have, to all
intents and purposes, been imported into this jurisdiction,
as a result of the enactment of new laws and the organization and establishment of new institutions by the Congress of the United States or under its authority; for it
will be found that many of these laws can only be construed and applied with the aid of the common law from
which they are derived, and that to breathe the breath of
life into many of the institutions introduced in these
Islands under American sovereignty recourse must be
had to the rules, principles, and doctrines of the common
law under whose protecting aegis the prototypes of these
institutions had  their birth." 7  The court recently,
citing the cases here mentioned, said:  "We have frequently held that, for the proper construction and application of the terms and provisions of legislative enactments which have been borrowed from or modelled upon
78 Serra v. Mortiga (1907) 204 U. S. 470, 474, 51 L. Ed. 571, 11
Phil. 762; Kepner v. U. S. (1904) 195 U. S. 100, 11 Phil. 669, etc.;
and Philippine cases, as Roa v. Collector of Customs (1912) 23 Phil.
315, 339.
79Alzua v. Johnson (1912) 21 Phil. 308, 331; 231 U. S. 106, 58
L. Ed. 142 (1913). In accord is the leading case of Carter v.
Commonwealth (1899) 96 Va. 791, 45 L. R. A. 310.




PHILIPPINE LAW


703


Anglo-American precedents, it is proper and ofttimes essential to review the legislative history of such enactments and to find an authoritative guide for their interpretation and application in the decisions of American
and English courts of last resort construing and applying
similar legislation in those countries." 80 Add to these
decisions, what is necessarily true, that decisions of the
United States Supreme Court are binding on Philippine
courts; 81 set down the well-known principle of statutory
construction that "when a statute is adopted from another
state or country and such statute has previously been construed by the courts of such state or country, the statute
is deemed, as a general rule, to have been adopted with
the construction given to it;" 82 and call to mind that all
Philippine remedial and political law, most of the commercial, and a goodly portion of the civil and criminal
is of American origin, and there cannot but be realized
the far reaching and even dominating influence of English and American common law over the Philippine jurisprudence.8s  What Dean lenner in an address delivered
at the Centennial Anniversary of the organization of the
Supreme Court of Louisiana said of that court "that in
a very large proportion of the cases decided by this
court the law to be applied is sought from the same
sources and by the same methods as are resorted to in
the Common Law States of the Union"-could be para80s. S. v. De Guzman (1915) XIII O. G. 1173, 1174. See also
Arellano, C. J., in Yangco v. Rhode (1902) 1 Phil. 404; U. S. v.
Quinajon (1915) XIII O. G. 1680; and similarly for Porto Rico,
Diaz v. Porto Rico Railway Co. (1914) 21 Porto Rico 73.
81 Bryan Landon Co. v. American Bank (1906) 7 Phil. 255; U. S.
v. Pico (1911) 18 Phil. 386.
82 Lewis' Sutherland Statutory Construction, p. 783; Castle Bros.,
Wolf & Sons v. Go-Juno (1906) 7 Phil. 144.
88 Just as the common law won victories in India, Canada, and
other countries. See Sir Frederick Pollock, The Expansion of the
Common Law, pp. 16, 132-134, etc.




704


PHILIPPINE GOVERNMENT


phrased for the Supreme Court of the Philippines. The
Philippine Legislature may not have adopted the common law and technically the body of such law may not
have effect, but practically speaking, no force of greater
influence, not even excepting the codes, can be found in
the every day practice of the lawyer and the courts.
~ 170. Spanish common law.-It is difficult to define or describe the common law of Spain.84 However,
we find that both the Civil Code and the Code of Commerce jealously guard local customs and laws. In default of such customs and laws "the general principles
of law" the Civil Code provides can be applied by the
tribunals.86 The Code of Commerce in four articles recognizes "the common law." 86
What is meant by "general principles of law" and
"common law?" We need not linger to approximate exact definitions, although from the best consideration given
the subject the phrase "general principles of law" as here
used. seems to have signified the broad principles of
justice, including natural law, scientific law, and the opinions of the jurists.87 By "derecho comuin," (common
84 See Escriche, Diccionario razonado de Legislacion y Jurisprudencia title "Derecho comuin;" Walton's Civil Law in Spain and
Spanish-America, pp. 110-115.
8 Art. 6. See also arts. 12, 13, 485, pars. 2, 570, 571, 590, 591,
1555, pars. 2, 1579, 1580, 1976 of the Civil Code. Art 21 of the
Louisiana Code provides: "In all civil matters, where there is
no express law, the judge is bound to proceed and decide according
to equity. To decide equitably, an appeal is to be made to natural
law and reason, or received usages, where positive law is silent."
Dean Fenner adds: "It is clear that here is a recognition of the
unwritten law in the broadest sense with a designation of the
sources from which it is to be derived that are identical with those
to which Common Law judges have resorted from the beginning."
Address Centennial Anniversary of the Organization of the Supreme
Court of Louisiana.
86 Arts. 2, 50, 310, 943.
872 Sanchez Roman, Derecho Civil, p. 100. Sanchez Roman ap



PHILIPPINE LAW                       705
law), was meant the law of Castille, including the Partiprovingly cites Valverde, who says: "We think that the legislator
proposes to give a greater extension and authority to this phrase.
There are principles of justice that are higher than the contingency
and variableness of facts; there are higher forms which serve as
the foundation for positive law, whatever may be the course of
development of. the latter; there are rules, accepted by jurists,
which constitute true axioms for him who takes part in juridical
life, and which doubtless form a law higher than that laid down
by the legislator, and it is to these principles, rules and forms that
our legislator undoubtedly refers." 2 Sanchez Roman, Derecho Civil,
p. 102. Arribas, a Spanish civilian, believes that the phrase means
"the fundamental principles of every law."   Cited by Sanchez
Roman, vol. 2, p. 102, note 1. Manresa holds substantially the
same view. He says: "Whether or not the law accepts scientific law,
the latter can never be proscribed. As a distinguished jurist says,
'science will always analyze, compare, and emphasize the relations of
different provisions, reconcile contradictions, settle questions which
the sense of the law offers; and juridical doctrine will be formed
more or less rapidly, or more or less slowly, but by necessity; it will
establish a general criterion, will formulate or proclaim axioms of
law, not only those which we might call traditional but also those
which are recently worked out, according to the spirit that may filter
into our institutions, and will govern juridical conscience with the
same authority as the precept of the legislator. To ignore it is to
show ignorance of what the life of the law really is. "  1
Manresa, Comentarios al Codigo Civil, p. 79.
Our Supreme Court has applied the words under consideration
in two cases. In The Heirs of Jumero v. Lizares (1910) 17 Phil.
112, where the lower court, there being doubt as to the character
of the contract under which the defendant held the land in litigation,
decided in favor of the defendant, the Supreme Court, per Arellano,
C. J., said on pages 115 and 116:
"As to the second assignment of error, it is true that the trial
judge while in doubt, and by reason of his doubt, which existed
after weighing the contradictory testimony, decided the suit in favor
of the defendant. In so doing, he committed no error whatever,
but, on the contrary, complied with the second paragraph of article
6 of the Civil Code which provides:
"'When there is no law exactly applicable to the point in controversy, the customs of the place shall be observed, and, in the
absence thereof, the general principles of law.'
P. I. Govt.-45.




706


PHILIPPINE GOVERNMENT


das, as distinguished from the foral law.88 Further, in
order that these general principles of law may be admitted
as suppletory law, they must always be alleged.89
As to the weight in Spain given to the decisions of its
highest tribunal, Sanchez Roman would impress on the
reader that under article six of the Civil Code authorizing
the application of general principles of law, "judicial decisions can not be resorted to." 90 Yet this learned commentator admits that repeated decisions on the same point
may be binding authority.91 The general continental rule,
inherited from Rome and even expressed in the codes, is
that   previous    decisions   are   instructive   but   not
authoritative.92
Even if a corruption of our section title, what is for
us of interest is not to ascertain the exact meaning or
force of the Spanish common law in Spain, but to know
that the courts of the Philippines give to the decisions
of the Supreme Court of Spain an added importance by
citing and following these decisions. Other civil law
jurisdictions, as France, Porto Rico, Cuba, and Louisi"And it is a general principle of law that, in case of doubt, the
condition of he who possesses is the better one. The defendant in
whose favor the doubt was decided is the possessor."  See also
Urrutia & Co. v. Pasig Steamer and Lighter Co. (1912) 22 Phil.
330. The court through Torres, J., held that although compensation
was not provided for by any law, yet it should be given, in accordance with the demands of "strict justice."
88 1 Sanchez Roman, p. 76; I Blanco, Dcrccho Mercantil, pp. 341
and 342. See art. 15, Civil Code. "The partidas is still the basis
of Spanish common law, for the more recent compilations are
chiefly founded on it, and cases which cannot be decided either by
these compilations or by the local fueros must be decided by the
provisions of the Partidas." IV Dunham, History of Spain, p. 109.
89 Decisions of the Supreme Court of Spain of October 16, 1894,
and May 30, 1898; 1 Manresa, Comentarios al Cddigo Civil, p. 81.
90 2 Derecho Civil, pp. 79-81; also 1 Manresa, p. 80.
91 Id., pp. 69-71. See also 1 Amandi, Cddigo Civil, pp. 27 et seq.
92 See Holland's Jurisprudence, 11th Ed., pp. 68-70.




PHILIPPINE LAW


707


ana are gone to for authorities, but the main reservoir is
always Spain. Taking the last volume of Philippine Reports at hand (Volume 27), cases coming from the Supreme Court of Spain are cited by the Supreme Court of
the Philippines twenty-five times. The first volume of
Philippine Reports shows Spanish decisions cited sixtythree times, indicating a decline in use. In proportion.
therefore, to American precedents, the influence of Spain
is comparatively slight, and with a new Penal Code, will
be still further diminished. Nevertheless, now and for
a long time to come, Spanish jurisprudence will be worthy
of special notice.
Of course the sovereignty of Spain in the Philippines
having passed, the weight of the decisions of its courts
can not be of primary authority. The decisions of the
Supreme Court of Spain are merely referred to by the
Supreme Court of the Philippines for guidance. Just
as in civil law countries the doctrine of precedents does
not obtain in its integrity, so as an opinion of a foreign
jurisdiction, a decision of the Supreme Court of Spain,
will be treated merely as persuasive authority.9  The
United States Supreme Court was recently asked to hold
Spanish cases binding on facts coming from Porto Rico.
It declined, Mr. Justice Holmes, saying:
"The Spanish decisions... have not the same
effect as do those construing a statute subsequently copied
by another state. They were rendered after Porto Rico
has ceased to be subject to Spanish jurisdiction, and although entitled to great consideration, which no doubt
they received, they do not preclude the local court from
exercising an independent judgment. The construction
adopted in Porto Rico at least does no violence to the
words of the statute; it concerns local affairs under a
system with which the court of the Islands is called on


98 See Black's Law of Judicial Precedents, pp. 21 et seq., 447 et seq.




708


PHILIPPINE GOVERNMENT


constantly to deal, and we are not prepared, as against
the weight properly attributed to the local decision, to say
that it is wrong." 94
~ 171. Customary law.-It is not at all strange that,
with the Malay customary law so highly developed
as it was in pre-Spanish times and with recognition of
its existence by Spain, customs and usages should have
persisted through the centuries even unto the present.95
These have varied in extent and weight in an inverse
proportion to the vigor of Spanish or American control.
Practically supreme until recently among the Moros, the
Tagbanuas, and the northern peoples, customs are even
now controlling throughout the land to a degree not
generally appreciated.
Since customs are handed down as tradition by word
of mouth, since these vary with different regions, and
since but rarely has anyone taken the pains to write them
down, the nature of all such customs it is impossible to
describe. The old men versed in the law, as the "Lalakai"
of the Igorots, unfortunately employing no reporter of
decisions, volumes would be needed to encompass Philippine customary law due to its extensive ramifications.
Fabian de la Paz in a thesis on Customary Law has
written interestingly of the subject, under the heads of
Marriage, Property, and Obligations. But, as the learned
Epifanio de los Santos says:
"In the Philippines, whoever wants to know
the laws on testamentary succession, and the practice followed, in certain places, with reference to wills until the
promulgation of the Civil Code, and even after that, will
only have to open Parrocho de Indos of Casimiro Diaz,
"C6rdova v. Folgueras (1913) 227 U. S. 375, 57 L. Ed. 556.
But see Kealoha v. Castle (1908) 210 U. S. 149, 52 L. Ed. 998, in
which a construction given to a statute by the courts of Hawaii in
1890, before annexation, was followed.
'9 See Ch. 2 hereof.




PHILIPPINE LAW


709


and there he shall find the Practica de Testamentos of
Murillo Velarde, and thus he shall learn the ways in which
a Filipino distributed his property. In such pamphlets as
the Parrocho, Confesionarios, Catecismos, prayer-books,
which nobody reads at present, because perhaps it is more
convenient to ignore them, one may unexpectedly, as we
have said in another part, discover the customary law of
the native, and the written and customary law of the
colonizers imposed on the country, and the procedure or
juridical practice, whether, relating to ecclesiastical law,
to the ordinary law, to the military law, or to the inquisition courts, and to other peculiarities of the juridical life
of the country." 96
At least we know that among the Moros customs approximating the dignity of written codes exist. We know
that among the peoples of the Mountain Province and
elsewhere, there are extant rudimentary principles applicable to almost every possible situation. We know
that customs can be found even within sight of the
metropolis. And by comparison, we find that many present customs and usages are identical with those of the
traditional age.
Philippine written law has lent recognition to customs.
Article six of the Civil Code provides that "when there
is no law exactly applicable to the point in controversy,
the customs of the place shall be observed." 97 The Code
of Commerce is somewhat to the same effect as to commercial transactions.98 The Organic Act for Mindanao
and Sulu takes cognizance of the customs of the Moros.?
The courts have considered the force of customs in
96 Biography of Ignacio Villamor, 1 Philippine Law Journal, Jan.,
1915, p. 256.
97See also articles of Civil Code cited under Spanish common
law.
98 See especially art. 2.
e Act 2520, sec. 3, quoted in next section.




710


PHILIPPINE GOVERNMENT


a number of cases.     How   often the judges of the
Mountain Province, of Mindanao and Sulu, of Palawan
and other places have modified judgments to plumb with
local usage and law, it is impossible to say. The United
States Supreme Court confirmed a title to land held in
accordance with Igorot customs.10~ The Supreme Court
of the Philippines examined and construed Moro customs
and codes but found itself not warranted in recognizing
title to a tract of land as in a Moro datto.10l The same
Court held that a tribal marriage ceremony will not be
recognized as legal.102  It said, in an opinion by Mr.
Justice Torres, that: "A contract for services or work
to be performed exists not only where a certain and
definite compensation has been expressly agreed upon,
but also where the same can be ascertained from the
customs and usages of the place in which such services
were rendered." 103 And in reversing a judgment because
it did not take into account a universal practice, the
Court, through Mr. Justice Moreland, spoke of "the sanction of the strongest of all civil forces, the customs of
a people." 104
Such is the general situation of Philippine customary
law as viewed by the written law and by the courts. In
addition, there can be little doubt that as occasion requires, the courts will apply well-established definitions
and principles, a few of which we append:
A custom is a law established by long usage.105  One
l~0Carifio v. Insular Government (1909) 212 U. S. 449, 53 L. Ed.
594.
101Cacho v. Government of the United States (1914) 28 Phil.
616.
102U. S. v. Tubban (1915) XIII O. G. 425.
103 Smith v. Lopez (1905) 5 Phil. 78, 82. See also Lichauco v.
Armstrong (1910) 17 Phil. 39; Urruita & Co. v. Pasig Steamer and
Lighter Co. (1912) 22 Phil. 330.
104 Martinez v. Van Buskirk (1910) 18 Phil. 79.
10 Linn-Regis v. Taylor, 3 Lev. 160; 2 Blackstone Comm. 263;




PHILIPPINE LAW


711


case tritely describes custom  as "local common law." 106
Mr. Chief Justice Arellano (Leccion del Derccho Civil)
defines custom "as the rule of action and conduct formed
by the repetition of acts uniformly observed as social
con(luct formed through the tacit consent of the legislator."  The Louisiana Civil Code says: "Customs result
from  a long series of actions constantly repeated, which
have by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent." 107 The community, not the state, formulates customary law by co-operative action. Usage refers to a
general habit, mode, or course of procedure.108  "We must
not confound custom    with usage; usage is no more than
a fact, custom is a law; there may be usage without
custom, but there can be no custom without usage to accompany or precede it: usage consists in the repetition
of acts, and custom     arises out of this repetition." 109
Customs to be considered as such must be ancient, certain
and uniform, current, consistent, continued, general,
known, moral, acquiesced in, and reasonable. 10 The
Strother v. Lucas (1838) 12 Pet. 410, 445, 9 L. Ed. 1137; Wilson,
The State, p. 587.
106 Hammerton v. Honey, 24 Wkly. Rep. 603.
107 Revised Edition of 1900, art. 3.
108 Lowry v. Read (1870) 3 Brewst. (Pa.) 452.
109Escriche Dictionary quoted in Cutter v. Waddingham (1855)
22 Mo. 206, 284.
110 12 Cyc. p. 1028 et seq., article by Dean Lawson, Law Department, University of Missouri; Gareis, Science of Iaw, pp. 76 et seq.;
Fabian de la Paz, Customary Law, unpublished thesis, pp. 8 et seq.
The distinguished Professor Pisa Pajares gives the following recapitulation of the generally accepted requisites which a custom
should possess:  1st. Plurality of acts; several solutions of a
juridical question occurring repeatedly in every day life. 2nd. Uniformity; that all the solutions given to that juridical question must
have been uniform; or better said, there must have been only one
solution. 3rd. Lapse of time. And 4th. Juridical intention; that
is, the author of the acts must have executed them as just. I




712


PHILIPPINE GOVERNMENT


language of Lord Brougham is that "it is quite plain
that as against a plain statutory law no usage (or custom)
is of any avail." 1l A general usage and custom need
not be pleaded or proved. But Mr. Chief Justice Arellano, declining to approve a contract depending for its
existence upon some local custom       laid down the rule
that "A local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other
fact." n1
~ 172. Mohammedan law.11 —The original act providing for the organization and government of the
Moro Province attempted to have the Moro customary
laws collected, codified, and revised."' These laws were
then to apply to all actions arising between Moros.
Manresa, p. 76. To which should be added, under the English view,
that the custom must be reasonable. Malus usus est abolendus. Co.
Litt. s. 212.
111 Magistrates of Dunbar v. Duchess of Roxburghe, 3 Cl. &
Fin. 335, quoted in Op. Atty. Gen. P. I. May 27, 1912. See also
Co-Boo v. Lim Tian (1904) 3 Phil. 186; Ang Seng Quen v. Juan Te
Chico (1909) 12 Phil. 547; Basey v. Gallagher (1875) 20 Wall. 670,
22 L. Ed. 452; Swift v. U. S. (1882) 105 U. S. 691, 26 L. Ed. 1108.
112 Patriarca v. Orate (1907) 7 Phil. 390, 395.
113 See generally Najeeb M. Saleeby, Studies in Moro History,
Law, and Religion, Ch. II, giving English translations of "the best
official Codes of Magindanao and Sulu"; Charles S. Lobingier, The
Legal Influence of Islam in the Philippines, a lecture before the
Philippine Academy and the law students of the University of the
Philippines; same author in XXI Law Quarterly Review, Oct.,
1905, pp. 405, 406; Report of General Wood, Sept. 9, 1904; MacClintock, Mohammedan Law in our Philippine Possessions, XXI
Green Bay, July, 1909, p. 319. The author has also received the
benefit of a communication on the subject from Dr. Saleeby.
114 Act 787, sec. 13 (j), effective July 1, 1903, reading as follows:
"To enact laws which shall collect and codify the customary
laws of the Moros as they now obtain and are enforced in the
various parts of the Moro Province among the Moros, modifying
such laws as the legislative council think best and amending them




PHILIPPINE LAW


713


Shortly thereafter, on recommendation of the government of the Moro Province,11 the Philippine Commission
repealed the provisions for codification, and instead,
authorized the Legislative Council of the Moro Province
to modify Philippine law to suit local conditions among
as they may be inconsistent with the provisions of the Act of
Congress entitled 'An Act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands,
and for other purposes,' and to provide for the printing of such
codification, when completed, in English, Arabic, or the local Moro
dialects as may be deemed wise. The moro customary laws thus
amended and codified shall apply in all civil and criminal actions
between Moros. In all civil and criminal actions arising between
members of the same non-Christian tribe other than Moros, unless
otherwise provided by the legislative council, the customary laws
of such non-Christian tribe, if consistent with the Act of Congress
above mentioned and if defined and well understood, shall govern
the decision of the cause arising, but if there be no well-defined
customary laws or they are in conflict with such Act of Congress
then the cases shall be determined by the criminal or civil code
according to the laws of the Philippine Islands until the legislative
council shall make other provision. In actions, civil or criminal,
arising between a Moro and a Christian Filipino, or an American
or a subject or citizen of a foreign country, the Criminal Code
and the substantive civil law of the Philippine Islands shall apply and
be enforced."
Thus following the example of the British, Dutch, and French
governments. R. K Wilson, Digest of Anglo-Muhammedan Law;
Reinsch, Colonial Government, Ch. XVIII. The Statute 21 Geo.
III. c. 70, sect. 17, in declaring the powers of the Supreme Court
at Calcutta, provides that "inheritance and succession to lands,
rents and goods, and all matters of contract and dealing between
party and party, shall be determined in the case of Mahomedans
by the laws and usages of Mahomedans, and in the case of Gentius
by the laws and usages of Gentfis, and when only one of the
parties shall be a Mahomedan or Gentfi, by the laws and usages of
the defendant." Similar provisions with reference to the Courts at
Madras and Bombay are contained in 37 Geo. III. c. 142.
11 "It was found that the customary laws of the Moros and
non-Christians were either non-existent or so vague and whimsical
as to be impracticable of administration in courts of justice. The




714


PHILIPPINE GOVERNMENT


the Moros and other non-Christian inhabitants of the
Province.116 Such amended laws were to conform when
practicable to local customs and usages. Recently, when
the Legislative Council was abolished, the Philippine
Commission provided that "judges of the Court of First
Instance and justices of the peace deciding civil cases in
which the parties are Mohammedans or pagans, when
such action is deemed wise, may modify the application
of the law of the Philippine Islands, except laws of the
United States applicable to the Philippine Islands, taking
into account local laws and customs: Provided, That such
modification shall not be in conflict with the basic principles of the laws of the United States of America." 117
The standing given to Mohammedan law in the Philippines is thus seen. It may not change the complexion
of the Philippine legal system    permanently.   At least
for some time to come Mohammedan laws and customs
will have to be examined and considered in cases arising
in the Moro country and will constitute the basis for
settling civil differences outside the courts.
The Koran is, of course, for the Mohammedan the
sacred law book, but there is very little strictly legislative
matter scattered through it.11  The Moros further accept
legislative council reached the conclusion that it would be better
to apply, with some modifications to suit local conditions, the general laws of the Philippine Islands to these people." Report of the
Acting Governor of the Moro Province, July 10, 1905, Report of
the Philippine Commission, Part I, 1905, p. 330. See also Cacho v.
The Government of the U. S. (1914) 28 Phil. 616.
116Act 1283, sec. 6 (b), effective Feb. 1, 1905. But an opinion
of the Attorney-General virtually nullified this subsection. 4 Op.
Atty. Gen. P. I. 472. Pursuant to Act 1283, Act 114 was enacted
by the Legislative Council and amended and approved by the Philippine Commission on Sept. 4, 1905. The idea is somewhat the same
as adopted by the United States for the Indians. See U. S. v.
Kagama (1886) 118 U. S. 375, 30 L. Ed. 228.
117Act 2520, sec. 3, effective April 3, 1915.
118 R K. Wilson, Digest of Anglo-Muhammedan Law, p. 9.




PHILIPPINE LAW


715


all Mohammedan law. The laws of most general application among the Moros of Mindanao are found in a
code known as "Luwaran" (selection) brought to the
Island by the Mohammedan conquerors and modified to
suit local conditions. The most reliable and scholarly
author on Moro history and law in the Philippines, Dr.
Najeeb M. Saleeby, a prominent Manila physician, gives
an English translation from the Arabic of "the Luwaran,
the Magindanao Code of Laws." 119 le says of it generally:
"The term Luwaran, which the Mindanao Moros apply
to their code of law, means 'selection' or 'selected.' The
laws that are embodied in the Luwaran are selections from
old Arabic law and were translated and compiled for the
guidance and information of the Mindanao datus, judges,
and pandita who do not understand Arabic. The Mindanao copies of the Luwaran give no dates at all, and
nobody seems to know when this code was made..
The Arabic books quoted in the Luwaran are Minaju-lArifcenl, Tagrcebu-l-Intifa, Fathu-l-Qareeb, and Mirdtut-Tutllb. The first of these, generally known as the
Minhlaj is the chief authority quoted...   The
compilation of the Luwaran must have been made before
the middle of the eighteenth century.  In making the
Lzlarant the Mindanao judges selected such laws as in
their judgment suited the conditions and the requirements
of order in Mindanao. They used the Arabic text as a
basis, but constructed their articles in a concrete form,
embodying genuine examples and incidents of common
occurrence in Mindanao. In some places they modified
the sense of the Arabic so much as to make it agree with
the prevailing customs of their country. In a few instances they made new articles which do not exist in


119 Given in Saleeby, Studies in Moro History, Law, and Religion,
pp. 66-88.




716


PHILIPPINE GOVERNMENT


Arabic but which conform to the national customs and
common practices. The authority of the Luwaran is universally accepted in Mindanao and is held sacred next to
that of the Koran. The Mindanao judge is at liberty to
use either of them as his authority for the sentence to be
rendered, but as a rule a quotation from the Koran bearing on the subject is desirable." 120
The "Luwaran" treats of both substantive and procedural law. Family relations, property, commercial intercourse, evidence, and criminal offenses are some of the
subjects receiving most attention. The penalties are
usually payment of fines. Quotations in Arabic appear
as marginal notes."11 The "Luwaran" is valuable not
alone for its contents but as pointing the course to be
followed in relation with the Moros.
The Mohammedans of the Sulu Archipelago have likewise developed successively several codes. The present
principal Sulu Code is translated by Dr. Saleeby.122 He
also tells of a new Sulu Code, a rearrangement of the old
one, but not generally adopted.123
As to compliance with the Moro Codes, Dr. Saleeby
states:
"In actual practice the Moros do not distinguish between custom   and law.    Many of their customs are
given the force of law, and many laws are set aside on
account of contradiction to the prevailing customs of the
day.
"The Moros are not strict nor just in the execution of
the law. The laws relating to murder, adultery, and inheritance are seldom strictly complied with. Indeed, the
20 Saleeby, Studies in Moro History, Law and Religion, pp. 64,
65. The Luwaran is construed by the Supreme Court of the Philippines in Cacho v. Government of the U. S. (1914) 28 Phil. 616.
121 English translations given by Saleeby id., pp. 82-89.
122 Given in Saleeby id., pp. 89-94.
123Translations given by Saleeby id., pp. 94-100.




PHILIPPINE LAW


717


laws of inheritance as given in the Liuwaran are generally disregarded and are seldom considered at all. Mohammedan law does not recognize classes, except the slave
class. But Moro law is not applied equally to all classes.
Great preference is shown the datu class, and little consideration is given to the children of concubines.
"The Luwaran, nevertheless, is the recognized law of
the land and compliance with it is a virtue." 124
~ 173. Case law.-The courts would probably indignantly reject the imputation that they make law. Frequently has our Supreme Court vigorously asserted that
it should not and would not put on the mantle of tle
Legislature.   Bentham's    "Judge   made   law"   it condemns.126 Yet the courts here as elsewhere do mould and
expand the law by their decisions. They breathe life into
dead law. They impel to legislative action to cure de124 Saleeby, Studies in Moro History, Law, and Religion, pp.
65, 66.
125 See Gomez v. Hip6lito (1903) 2 Phil. 732, Johnson, J., dissenting and Lamb v. Phipps (1912) 22 Phil. 456, Trent, J., dissenting,
p. 558.
Lord Esher, M. R., says: "There is in fact no such thing as
judge-made law, for the judges do not make the law, though
they frequently have to apply existing law to circumstances as to
which it has not previously been authoritatively laid down that
such law is applicable." Willis v. Baddeley (1892) 2 Q. B. (C. A.)
324, 326. Another court has said: "This power of construction in
courts is a mighty one, and, unrestrained by settled rules, would
tend to throw a painful uncertainty over the effect that might be
given to the most plainly worded statutes, and render courts, in
reality, the legislative power of the state. Instances are not wanting to confirm this. Judge-made law has overridden the legislative
department. It was the boast of Chief Justice Pemberton, one of
the judges of the despot Charles II, and not the worst even of
those times, that he had entirely outdone the Parliament in making law. We think that system of jurisprudence best and safest
which controls most by fixed rules, and leaves least to the discretion of the judge; a doctrine constituting one of the points of
superiority in the common law over that system which has been




718


PHILIPPINE GOVERNMENT


fects. Authoritative interpretation of the written law by
the courts acquires the force of law.
The Courts of First Instance dividing the Philippines
into twenty-six judicial districts are courts of record.
Unfortunately, no effort is made to publish the opinions
of the judges and only occasionally and then on private
initiative do their decisions reach the public. The only
way by which uniformity is attained under such conditions is by circulars of the Secretary of Finance and
Justice and through the judgments of the Supreme Court
harmonizing on appeal various inconsistent applications
of the law by the several judges of first instance. Moreover, the judges of all inferior courts are bound to accept
and follow   the decisions of the Supreme Court of the
Philippines implicitly.
The Supreme Court of the Philippines has published
thirty volumes of reports in both English and Spanish.
Due to the freedom of appeal, its revision of all death
sentences, its review of the evidence, its right to declare
statutes invalid, its exclusive jurisdiction, and the grave
questions which the institution of a new government and
the blending of different systems of law presented, the
opinions of the Supreme Court are of unusually great importance.   Having to break new      ground, the Supreme
administered in France, where authorities had no force, and the
law of each case was what the judge of the case saw fit to make
it. We admit that the exercise of an unlimited discretion may, in
a particular instance, be attended with a salutary result; still history
informs us that it has often been the case that the arbitrary discretion of a judge was the law of a tyrant, and warns us that it may be
so again." Perkins, J., in Spencer v. State (1854) 5 Ind. 41, 46.
Most modern writers agree with the criticism of Austin, upon what
he describes as "the childish fiction employed by our judges, that
judiciary or common law is not made by them, but is a miraculous
something made by nobody; existing from eternity, and merely declared, from time to time, by the judges." Lectures, ii, p. 655; Holland, Elements of Jurisprudence, 11th Ed., pp. 65, 66, note.




PHILIPPINE LAW


719


Court could, in initial decisions, keep itself free from hide
bound precedent, and could consider the reason of the law
rather than the letter. A studious effort is baldly apparent
to discourage prolonged litigation and finally to dispose
of cases if any equitable construction of the pleadings
will so permit.126
The Court takes the stand to give testimony in its own
behalf as follows:
"The Supreme Court of the Philippine Islands annually
disposes of some eight hundred cases, about equally divided between the civil and the criminal dockets, in some
five hundred of which written opinions are filed. In addition, an exceptionally large number of motions and incidental matters are disposed of in minute orders; the
exceptionally large number of matters of this nature
being due, in part at least, to the adoption in this jurisdiction of an American procedural system, without any
substantial modification of the substantive law of the
Islands as found in the codes of Spain. It is believed
that a comparison of these figures with those of the halfhundred courts of last resort in the United States will
disclose that the volume of the output of this court, as
a whole and per capita of its membership, places it well
within the rank of the first half dozen of those courts in
this regard.  (See the reporters generally and data assembled by the West Publishing Company and published
in the Docket.)
"Furthermore, it is to be remembered that in disposing
of this large volume of business, this court, unlike the
appellate courts of the United States generally, is required, in all criminal cases and in ninety per cent of the
civil cases, to review the evidence (which is not required
126 See for example Rakes v. Atlantic Gulf and Pacific Co. (1907)
7 Phil. 359; Manila Railroad Co. v. Attorney-General (1911) 20
Phil. 523; Lizarraga Hermanos v. Yap Tico (1913) 24 Phil. 504,
513.




720


PHILIPPINE GOVERNMENT


by law to be printed and comes up in the original transcript of the stenographer's notes), so as to ascertain
whether the judgment of the lower courts are 'sustained
by the weight of the evidence.' " 127
The salutary effect of uniformity, certainty, and stability in the law will be attained here as elsewhere under
American sovereignty by adherence to the rule of starc
decisis.28 The Supreme Court would undoubtedly not feel
itself bound by obiter dicta to be found in previous opinions. As Mr. Chief Justice Marshall once said: "It is a
maxim not to be disregarded, that general expressions, in
every opinion, are to be taken in connection with the
case in which those expressions are used. If they go
beyond the case, they may be respected, but ought not to
control the judgment in a subsequent suit when the very
point is presented for decision." 129 The Supreme Court
does, however, suggest rulings to guide a new trial.
Cases taken to the United States Supreme Court on
appeal or writ of error become substantially a part of
the Philippine Case Law. These opinions, while few in
number, have been epochal in effect.
~ 174. Legal treatises.-One can find the names of
the leading Spanish commentators and of well-known
American text writers mentioned frequently in the Philippine Reports and the opinions of the Attorney-General.
The respect accorded the views of Manresa and Viada,
of Cooley and Dillon and others and their commanding
influence on decisions is noteworthy. In any number of
cases their opinions have been accepted without argument,
12Alzua v. Johnson (1912) 21 Phil. 308, 395.
l28 Kuenzle & Streiff v. Collector of Customs (1908) 12 Phil. 117;
and Black on Interpretation of Laws, p. 18. But see McGirr v.
Hamilton (1915) XIII O. G. 878, holding that where a question
passes the court sub silentio, the case in which the question is so
passed is not binding on the court.
s19 Cohens v. Virginia (1821) 6 Wheat. 264, 398, 5 L. Ed. 257.




PHILIPPINE LAW


721


as decisive. One can search in vain for a writer of Philippine origin cited as an authority.
It is true there are good books by Philippine authors.
Ignacio Villamor has written a scholarly Tratado de Elecciones; Manuel Ramirez, Manual de Derecho Civil;
Charles S. Lobingier on Philippine Practice; Teodoro M.
Kalaw, Teorias Constitucionales; F. R. Feria, Manuals on
Criminal Procedure and for Notaries Public and Justices
of the Peace; Mariano H. de Joya, Principios de Derecho
Internacional Privado; and there are others. Such volumes were intended as elementary text books for students
or for particular classes. They were not prepared to advocate reforms and accordingly have not caused radical
changes in statute law. Neither were they of such an
original nature as to be incorporated in the reports.
The field of Philippine forensic literature is a virgin one
awaiting the first furrow by the pioneer plowman.
~ 175. Philippine common law.-These words look
strange to the eye and sound stranger to the ear.  It
is time, however, that they should not, for just as every
nation must of necessity have its common law, simple or
complicated, according to the stage of society, so the
Philippines should learn to visualize and enunciate the
phrase "Philippine common law." 1so Once so recognized, it can be expanded and extended and be made
to embody just and flexible rules.
A retrospective survey will show that there is a Philippine common law. It is influenced by Anglo-American
common law and the derecho comuin of Spain, from both
of which it takes the locally applicable. It is made up of
customs, infinite in variety, illimitable in extent, and
powerful in influence. It has as yet not been moulded
10 Read Jacob v. State (1842) 3 Humphr. (Tenn.) 492. Attorney-General Araneta mentions the courts of the Philippine Islands as "building up their system of jurisprudence or common
law." 4 Op. Atty. Gen. P. I., 510, 514.
P. I. Govt.-46.




722


PHILIPPINE GOVERNMENT


by Philippine legal treatises. But it has builded up a case
law firmly imbedded in precedent.
When the Philippine courts come to apply precedents
making up a large portion of the common law of the
Islands, they will do so remembering that-decisions of
the Supreme Court of the United States on Philippine appeals or on an identical question, decisions of the Supreme
Court of the Philippines, and decisions of the court of
last resort of any state from which a Philippine statute
is taken, are of primary-controlling-authority. Decisions of the Courts of First Instance, official opinions of
the Attorney-General of the Philippine Islands, rulings
of Philippine executive officials, general opinions of the
United States Supreme Court, decisions of the state
courts and of Porto Rico, decisions of the Supreme
Court of Spain and other foreign jurisdictions, and scientific legal works are of secondary-persuasive-authority.
Construction.
~ 176. Established canons.-The courts and public
officers generally in the Philippines are guided in their
interpretation of the laws by elementary principles to be
found in the Codes.131    They also apply the rules of
American statutory construction as set forth in standard
authorities.12 Combining these provisions of the Codes
with the leading doctrines established by the Supreme
Court of the Philippines and adding a few acceptable and
181 Especially arts. 3, 4, 5, 7 of the Civil Code; and secs. 1, 2,
4, 287, 288, 294 of the Code of Civil Procedure taken from the
laws of California. Also sec. 6 (old sec. 9), Revised Ordinances,
City of Manila.
132 Cooley, Constitutional Limitations, 7th Ed.; Lewis Sutherland
Statutory Construction (leading authority); Black on Interpretation of Laws; and 36 Cyc. 929, will be found cited in the Philippine
Reports and the opinions of the Attorney-General.




PHILIPPIINE LAW


723


unimpeachable authorities, a miniature text on Philippine
Statutory Construction would read as follows:
Declaring laws invalid.
Each of the three departments of government and many
officials in these departments may be required to pass
upon constitutional questions. Only when legal controversies arise do such issues pass out of the realm of the
abstract. It is, therefore, the peculiar province and obligatory duty of the judiciary under the American political
system to declare laws unconstitutional or invalid (the
latter the more appropriate term because of the Philippine
status), if they transgress the authority of the legislature.
So in the Philippines the courts will pronounce Acts of
the Philippine Commission and Legislature repugnant to
the fundamental law to be invalid and void.188 The effect
of invalidity is that the invalid act "is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as
inoperative as though it had never been passed." 14 The
courts will further apply the well established rule concerning partial invalidity. "Where part of a statute is
void as repugnant to the Organic Law, while another
part is valid, the valid portion, if separable from the invalid, may stand and be enforced. But in order to do this,
the valid portion must be so far independent of the in183Ocampo v. Cabangis (1910) 15 Phil. 626, 631; U. S. v. Ten
Yu (1912) 24 Phil. 1, 10. See Weems v. U. S. (1910) 217 U. S.
378, 54 L. Ed. 803, in which the U. S. Supreme Court took the same
attitude as to a portion of a Philippine Code. Possibly more properly speaking "voidable" because a court can not "repeal" a law.
Shepard v. Wheeling (1887) 30 W. Va. 479; Cooley's Constitutional Limitations, 7th Ed., p. 163.
134 Norton v. Shelby County (1886) 118 U. S. 425, 442, 30 L.
Ed. 178; 6 R. C. L. 117. But see Burgess, Political Science and
Constitutional Law, Vol. II, pp. 327, 365.




724


PHILIPPINE GOVERNMENT


valid portion that it is fair to presume that the Legislature
would have enacted it by itself if they had supposed
that they could not constitutionally enact the other.
Enough must remain to make a complete, intelligible, and
valid statute, which carries out the legislative intent. The
void provisions must be eliminated without causing results affecting the main purpose of the Act in a manner
contrary  to  the  intention  of the   Legislature.   The
language used in the invalid part of a statute can have
no legal force or efficacy for any purpose whatever, and,
what remains must express the legislative will independently of the void part, since the court has no power
to legislate." 185
That the Supreme Court of the Philippines like the
United States Supreme Court exercises the power to nullify statutes cautiously and solemnly is shown by the few
laws held invalid.186 Says Judge Cooley: "It must be
evident to any one that the power to declare a legislative
enactment void is one which the judge, conscious of
the fallibility of the human judgment, will shrink from
exercising in any case where he can conscientiously and
with due regard to duty and official oath decline the responsibility." 187  As a general rule, courts will not pass
upon a constitutional question or decide a statute to be
35 Barrameda v. Moir (1913) 25 Phil. 44, 47, citing cases. See
Pollock v. Farmers' Loan and Trust Co. (1895) 158 U. S. 601, 635,
39 L. Ed. 1108; 6 R. C. L. 121.
1 The U. S. Supreme Court has annulled Congressional legislation in but 33 cases. B. F. Moore, The Supreme Court and Unconstitutional Legislation, Appendix 1. In the Philippines, see
Casanovas v. Hord (1907) 8 Phil. 125 (Act 1189, sec. 134); Omo v.
Insular Government (1908) 11 Phil. 67 (Act 648); Weigall v.
Shuster (1908) 11 Phil. 340 (customs law); Barrameda v. Moir, Id.
(Acts 2041 and 2131); McGirr v. Hamilton (1915) 13 0. G. 878
(Act 1627, sec. 16).
187 Cooley's Constitutional Limitations, 7th Ed., p. 227. Read Ch.
VII thereof.




PHILIPPINE LAW


725


invalid unless that question is raised and presented and
is necessary to a determination of the case; on the other
hand, the fact that a statute has been accepted as valid,
and invoked and applied for many years in cases where
its validity was not raised or passed on, does not prevent
a court from later passing on its validity where that
question is properly raised and presented.188
Every statute is presumed to be valid.     The United
States Supreme Court has announced time and again that
"the courts ought not to declare a law to be unconstitutional, unless it is clearly so.  If there is doubt, the
expressed will of the legislature should be sustained." 189
The Supreme Court of these Islands concordantly has
said: "Courts are slow to pronounce statutes invalid or
void. The question of the validity of every statute is
first determined by the legislative department of the government itself, and the courts should resolve every presumption in favor of its validity. Courts are not justified
in adjudging statutes invalid, in the face of the conclusion of the legislature, when the question of its validity
is at all doubtful." 40 Again and more specifically-"In
construing a statute enacted by the Philippine Commission we deem it our duty not to give it a construction
which would be repugnant to an Act of Congress, if the
language of the statute is fairly susceptible of another
construction not in conflict with the higher law." 1m  The
same line of reasoning was followed when the Philippine
188 McGirr v. Hamilton, Id., citing Cooley's Constitutional Limitations, p. 231 and decisions of the U. S. Supreme Court; U. S. v.
Noriega (1915) XIII O. G. 2154. See 6 R. C. L. 76.
189 Munn v. Illinois (1877) 94 U. S. 113, 123, 24 L. Ed. 77, followed in U. S. v. Grant, 18 Phil. 122, 140. To same effect Fletcher
v. Peck (1810) 6 Cranch, 87, 128, 3 L. Ed. 162; Sinking Fund
Cases (1879) 99 U. S. 700, 718, 25 L. Ed. 496; Powell v. Pennsylvania (1888) 127 U. S. 678, 32 L. Ed. 253; 6 R. C. L. 97.
40 U. S. v. Ten Yu (1912) 24 Phil. 1, 10.
1 lIn re Guarifia (1913) 24 Phil. 37, 46.




726


PHILIPPINE GOVERNMENT


courts came to consider ordinances. "Judicial authority
to declare an ordinance unreasonable is a power to be
cautiously exercised." 14
XApplication of law.
Ordinarily the courts merely apply the law to a statement of facts.  "The first and fundamental duty of the
courts, in our judgment, is to apply the law. Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate
without them. They are the very last functions which a
court should exercise. The majority of the laws need
no interpretation or construction. They require only application, and if there were more application and less construction, there would be more stability in the law, and
more people would know what the law is." 1
Cardinal rule of construction.
As above suggested, the courts must in some cases
necessarily interpret or construe the law. The one cardinal rule of statutory construction then is to ascertain and
give effect to the intention of the law making body. The
Code of Civil Procedure legislates this into formal law by
providing that: "In the construction of a statute, the
intention of the legislature...  is to be pursued;
and when a general and particular provision are inconsistent, the latter is paramount to the former.    So a
particular intent will control a general one that is incon12 City of Manila v. Manila E. R. & L. Co. (1912) 23 Phil. 547,
551.
18 Lizarraga Hermanos v. Yap Tico (1913) 24 Phil. 504, 513,
followed in Lambert v. Fox (1914) 26 Phil. 588 and in Yangco v.
Crossfield (1915) 13 0. G. 191. In accord U. S. v. Fisher (1804)
2 Cranch, 358, 2 L. Ed. 304.




PHILIPPINE LAW


727


sistent with it." 1"  The Supreme Court of the Philippines indorses the principle by stating that "where the
language of a statute is fairly susceptible of two or more
constructions, that construction should be adopted which
will most tend to give effect to the manifest intent of the
lawmaker and promote the object for which the statute
was enacted, and a construction should be rejected which
would tend to render abortive other provisions of the
statute and to defeat the object which the legislator sought
to attain by its enactment." 145 Nevertheless the Legislature must use words which in some way express intent,
for a court can not amend the law to make it agree with
what it is believed the Legislature must have intended.146
Practically speaking, common sense is the best guide
for the devious and obscure path of legislation. Mr. Chief
Justice Fuller in language followed by our Supreme Court
has said that "nothing is better settled than that statutes
should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid
an unjust or an absurd conclusion." 147
144 Sec. 288. Principle followed in Kepner v. U. S. (1904) 195
U. S. 100, 49 L. Ed. 114, 11 Phil. 669.
145 U. S. v. Toribio (1910) 15 Phil. 85, 90; also Uy Chaco Sons v.
Collector of Customs (1913) 24 Phil. 548 and other cases. "The
intent of the Legislature is sometimes little more than a useful legal
fiction, save as it describes in a general way certain outstanding
purposes which no one disputes, but which are frequently of little
aid in dealing with the precise points presented in litigation." From
address of Mr. Justice Hughes before the New York State Bar
Association, January 14, 1916.
146 U. S. v. Ambata (1904) 3 Phil. 327. But compare with U. S. v.
Go Chico (1909) 14 Phil. 128 and Lamb v. Phipps (1912) 22 Phil.
456, 493.
17 Lau Ow Bew v. U. S. (1892) 144 U. S. 47, 59, 36 L. Ed. 340,
followed in Lamb v. Phipps, Id. To same effect, U. S. v. Kirby
(1869) 7 Wall. 482, 19 L. Ed. 278, followed in In re Allen (1903)
2 Phil. 630.




728


PHILIPPINE GOVERNMENT


Subsidiary principles.
Only a few of the more important subsidiary principles
of legislation and canons of construction by which the
courts endeavor to ascertain the legislative intent can be
mentioned.
In the interpretation of the Code of Civil Procedure certain words named in its section 1 are to have the meaning
therein provided "unless the context shows that another
sense was intended." Moreover, "words in the present
tense include the future tense, and in the masculine gender
include the feminine and neuter genders; and words in the
plural include the singular, and in the singular include the
plural number." 148 But this enumeration does not require
a strict construction of other general words. "If in the
laws months, days, or nights are referred to, it shall be understood that the months are of thirty days, the days of
twenty-four hours, and the nights from the setting to the
rising of the sun. If the months are indicated by their
names, they shall be computed by their actual number
of days." 19 And, "unless otherwise specially provided,
the time within which an act is required by law to be
done shall be computed by excluding the first day and
including the last; and if the last be Sunday or a legal
holiday it shall be excluded." 150 Language used in a
statute which has a settled and well known meaning,
sanctioned by judicial decision, is presumed to be used
in that sense by the legislative body.151 A word used in
148 The words so interpreted are "person," "writing," "oath," "of
unsound mind," "bond," "and," "or," "writ," "process," "action,"
"pleadings," "dollars," "pesos," "territory of the United States."
See also Administrative Code, secs. 2, 629, 850, etc.
Is Civil Code, art. 7; Adm. Code, sec. 7.
150Code of Civil Procedure, sec. 4; Adm. Code, sec. 7. See U.
S. v. Tiqui (1902) 1 Phil. 306.
151 Kepner v. U. S. (1904) 195 U. S. 100, 49 L. Ed. 114, 11 PhiL
669.




PHILIPPINE LAW


729


a statute in a given sense is presumed to be used in the
same sense throughout the law.15' Tariff laws are to be
construed according to the commercial understanding of
the terms used; and such terms are to be taken in their
ordinary and comprehensive meaning unless it can be
shown that they have acquired a special or restricted
meaning.18 Our Supreme Court has been called upon to
construe specific words in a number of other cases.1M It
rightly holds to the view that "where language is plain,
subtle refinements which tinge words so as to give them
the color of a particular judicial theory are not only
unnecessary but decidedly harmful." '5 Mr. Chief Justice
Marshall, in the historic case of Gibbons v. Ogden, said:
"As men whose intentions require no concealment, generally employ the words which most directly and aptly
express the ideas they intend to convey, the enlightened
patriots who framed our Constitution, and the people who
adopted it, must be understood to have employed words in
their natural sense, and to have intended what they have
said." 156
The Civil Code provides: "Laws are repealed only by
other subsequent laws, and disuse or any custom       or
practice to the contrary shall not prevail against their
observance." 1b7  Express repeals are to be encouraged.
Repeals   by   implication-implied    repeals-are    not
favored. If the statutes can stand together consistently,
15Frohlich & Kuttner v. Collector of Customs (1911) 18 Phil.
461, 480.
15s Calder & Co. v. U. S. (1907) 8 Phil. 334, following Elliot v.
Swartwout (1836) 10 Pet. 137, 9 L. Ed. 373, and Arthur v. Morrison
(1877) 96 U. S. 108, 24 L. Ed. 764.
154E. g. Lamb v. Phipps (1912) 22 Phil. 456, 492; In re Guarifa
(1913) 24 Phil. 37; Yangco v. Crossfield (1915) 13 0. G. 191, and
Ops. Atty. Gen. P. I. index "words and phrases."
566Yangco v. Crossfield (1915) 13 0. G. 191.
1669 Wheat. 1, 187-189, 6 L. Ed. 23 (1824).
17 Art. 5.




730


IPIIILIPPINE GOVERNMENT


the later statute should not be considered as repealing the
earlier one. "It is a most flagrant violation of the rules
of statutory construction to give to a statute a meaning
which, in effect and in reality, repeals it altogether, where
any other reasonable construction is possible." 168 "Before
a statute can be held to have repealed a prior statute by
implication, it must appear, first, that the two statutes
touch the same subject matter, and, second, that the later
statute is repugnant to the earlier." 159 As an example of
a repeal by implication, where a later statute provides a
punishment in a different degree from    the punishment
provided in an earlier statute for the doing or omitting
to do a certain act, the legislator thereby clearly manifests his intention that at least, so far as the later statute
is inconsistent with the former statute, it shall be deemed
to repeal such former statute by implication.1~ The Administrative Code (sec. 12) provides-"When a law
which expressly repeals a prior law is itself repealed the
law first repealed shall not be thereby revived unless expressly so provided."
The Civil Code in article 3 provides-"Laws shall not
have a retroactive effect unless otherwise prescribed
therein." Our Supreme Court says-"All statutes are to
be construed as having only a prospective operation unless
the purpose and intention of the Legislature to give them
a retrospective effect is expressly declared or is necessarily implied from the language used. In every case of
doubt, the doubt must be solved against the retrospective
effect." 161 However, curative statutes can lawfully be
enacted. A ratification by the Legislature is equivalent
158 Martin v. Nacianceno (1911) 19 Phil. 238.
159Calder6n v. Dominicans (1914) 12 0. G. 1698. See also Uy
Chaco Sons v. Collector of Customs (1913) 24 Phil. 548.
160 U. S. v. Reyes (1908) 10 Phil. 423.
161 Montilla v. Augustinian Corporation (1913) 24 Phil. 220, citing
U. S. v. American Sugar Co. (1906) 202 U. S. 563, 50 L. Ed. 1149




PHILIPPINE LAW


731


to a mandate to perform    an act in the first instance, and
will be so considered by the courts.162  A defect in authority may be cured by the subsequent adoption of the act."'
\\When a curative statute is enacted, a case must be determined on the law      as it stands when judgment is
rendered.1"
Whether there shall be a strict or liberal construction
depends upon the nature of the act. The provisions of
the Code of Civil Procedure, and in fact all remedial
laws, are to be liberally construed.'65    Laws regulating
citizenship should receive a liberal construction in favor
of the claimant of it.'66 As a general rule, in the interpretation and construction of public grants, such as of titles
and franchises, that construction should be adopted which
will support the claim  of the government rather than of
and other cases. "The courts uniformly refuse to give to statutes
a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear
and positive as to leave no room to doubt that such was the intention of the legislature. In U. S. v. Heth, 3 Cranch 413, 2 L. Ed.
479, this court said that 'words in a statute ought not to have a
retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless
the intention of the legislature cannot be otherwise satisfied'; and
such is the settled doctrine of this court. Murray v. Gibson, 15 How.
423, 14 L. Ed. 755; McEwen v. Den, 24 How. 244, 16 L. Ed. 672;
Harvey v. Tyler, 2 Wall. 347, 17 L. Ed. 871; Sohn v. Waterson, 17
Wall. 599, 21 L. Ed. 737; Twenty Per Cent Cases (1874) 20 Wall.
187, 22 L. Ed. 339."-Harlan, J., in Chew Heong v. U. S. (1884)
112 U. S. 536, 559, 28 L. Ed. 770. See Inhabitants of Goshen v.
Inhabitants of Stonington (1822) 4 Conn. 209, 10 Am. Dec. 121.
162Government of the P. I. v. Standard Oil Co. (1911) 20 Phil.
30, following U. S. Supreme Court decisions.
163 Chucoco Tiaco v. Forbes (1913) 228 U. S. 549, 57 L. Ed. 960.
64 U. S. v. Heinszen (1907) 206 U. S. 370, 51 L. Ed. 1098.
165 Code of Civil Procedure, sec. 2; Zamora v. City of Manila
(1907) 7 Phil. 584.
166Roa v. Collector of Customs (1912) 23 Phil. 315, 338; Boyd
v. Thayer (1892) 143 U. S. 135, 36 L. Ed. 103.




732


PHILIPPINE GOVERNMENT


the individual.17 As to tax laws, Judge Story says: "It
is a general rule in the interpretation of all statutes levying taxes or duties upon subjects or citizens, not to extend
their provisions by implication beyond the clear import
of the language used, or to enlarge their operation so as
to embrace matters not specifically pointed out, although
standing on a close analogy. In every case, therefore,
of doubt, such statutes are construed most strongly
against the government, and in favor of the subjects or
citizens, because burdens are not to be imposed, nor presumed to be imposed, beyond what the statutes expressly
and clearly import." 168 Likewise penal statutes and statutes in derogation of general rights or authorizing summary proceedings are generally strictly construed.16
Courts must administer the law, said Mr. Justice Ladd
in an early opinion, not as they "think it ought to be but
as they (we) find it and without regard to consequences."
Where a statute is plain and unambiguous, expediency or
practical utility can not be considered.170 "The wisdom
or advisability of a particular statute is not a question for
the courts to determine-that is a question for the legislature to determine."    So "courts are not justified in
measuring their opinion with the opinion of the legislative department of the government, as expressed in
167 U. S. v. Aitken (1913) 25 Phil. 7, 22. Typical instances given
in Hall's Cases on Constitutional Law, p. 833, note. See Charles
River Bridge v. Warren Bridge (1837) 11 Pet. 420, 9 L. Ed. 773.
168 U. S. v. Wigglesworth, 2 Story, 369, followed in Frohlich &
Kuttner v. Collector of Customs (1911) 18 Phil. 461, 481. To same
effect are Castle Bros., Wolf & Sons v. McCoy (1912) 21 Phil.
300; Partington v. Attorney-General, L. R. 4 H. L. 100; and many
American cases.
169Tenorio v. Manila Railroad Co. (1912) 22 Phil. 411; Topacio
v. Paredes (1912) 23 Phil. 238. But not always, U. S. v. Go Chico
(1909) 14 Phil. 128, quoting from U. S. v. Wiltberger (1820) 5
Wheat. 76, 5 L. Ed. 37.
170Velasco v. Lopez (1903) 1 Phil. 720.




PHILIPPINE LAW


733


Statutes, upon questions of the wisdom, justice, or advisability of a particular law." 17    Although these are
the general rules, nevertheless, the court may consider
effects and consequences in proper cases and adopt a construction which will produce the most beneficial results.'7
The Code of Civil Procedure recognizes this fact by providing that "when a statute...  is equally susceptible of two interpretations, one in favor of natural
right and the other against it, the former is to be
adopted." m    Arguments of convenience often address
themselves strongly to the court.17' The physical condition of the country which must of necessity affect the
operation of a statute can be considered by a court.17'
An attempt to enforce an impossible act will not be
countenanced. And, finally, where a literal interpretation
of a statute would thwart the purpose of the legislature
or lead to absurd consequences, the court is justified in
looking through the form to the substance; in such cases
the spirit or reason of the law should prevail over the
letter.176 "For the letter killeth but the spirit giveth
life." 177 This must be taken to be the authoritative view
171U. S. v. Ten Yu (1912) 24 Phil. 1, 10. See also Sharpless v.
Mayor of Philadelphia (1853) 21 Pa. 147, 59 Am. Dec. 759; 6 R.
C. L. pp. 104-111.
172 Black on Interpretation of Laws, pp. 100 et seq. "In obscuris
inspici solere quod verisimilius est, aut quod plerumque fieri solet."
Dig. 50, 17, 114.
17 Code of Civil Procedure, sec. 294.
174U. S. v. Yap Kin Co. (1912) 22 Phil. 340, following Marshall,
C. J., in U. S. Fisher (1804) 2 Cranch 386, 2 L. Ed. 304.
17 Gomez v. Hip6lito (1903) 2 Phil. 732.
176 Rector of Holy Trinity Church v. U. S. (1892) 143 U. S. 457,
36 L. Ed. 226.
1772 Corinthians iii, 6, quoted in Caples v. State (1909) 3 Okla.
Crim. Rep. 73, 86, 104 Pac. 493, a decision of the Supreme Court
of Oklahoma confessing "to want of respect for precedents which
were found in the rubbish of Noah's Ark, and which have outlived
their usefulness, if they ever had any," and declining to hold the




734


PHILIPPINE GOVERNMENT


of the Supreme Court of the Philippines, for in the case
of In re Allen, notwithstanding the stricter doctrine to be
found in some other cases, Mr. Justice McDonough,
speaking for the court, held that where a literal interpretation of any part of a statute would operate unjustly,
or lead to absurd results, or is inconsistent with the meaning of an act as a whole, it should be rejected. In such
cases, he said, it must be presumed that the legislature
intended exceptions to its language which would avoid
such results.178 Again in the Flag Law Case Mr. Justice
Moreland said that literally hundreds of cases might be
cited to sustain this proposition: "Language is rarely
so free from ambiguity as to be incapable of being used
in more than one sense, and the literal interpretation of
a statute may lead to an absurdity, or evidently fail to
give the real intent of the legislature. When this is the
case, resort is had to the principle that the spirit of a
law controls the letter, so that a thing which is within the
intention of a statute is as much within the statute as if
it were within the letter, and a thing which is within the
letter of the statute is not within the statute unless it be
within the intention of the makers, and the statute should
be so construed as to advance the remedy and suppress the
mischief contemplated by the framers." 179
So also "clerical errors or misprints, which, if uncorrected, would render the statute unmeaning or nonsensiomission of the word "the" before the words "State of Oklahoma"
in the caption of the information, fatal. See 5 Op. Atty. Gen. P. I.
609.
178 In re Allen (1903) 2 Phil. 630, following U. S. v. Kirby
(1869) 7 Wall. 482, 19 L. Ed. 278, and Heydenfelt v. Daney Gold
Mining Co. (1877) 93 U. S. 634, 23 L. Ed. 995. Compare with
Velasco v. Lopez (1903) 1 Phil. 720 and U. S. v. Ambata (1904) 3
Phil. 327.
179U. S. v. Go Chico (1909) 14 Phil. 128, 139, quoting from 26
Am. & Eng. Encyc. of Law, 602. See also Uy Chaco Sons v. Collector of Customs (1913) 24 Phil. 548.




PHILIPPINE LAW


735


cal or would defeat or impair its intended operation
will be corrected by the court and the statute
read as amended, provided the true meaning is obvious,
and the real meaning of the legislature is apparent on
the face of the whole enactment." o80
The English text of Acts of the Philippine Commission and Legislature governs except that in case "of ambiguity, omission, or mistake the Spanish may be consulted to explain the English text.     The converse rule
shall, however, be applied if so provided in the particular statute." '8  Judicial notice will be taken of the origin,
history, and operation of statutes. For statutes borrowed from    or modelled upon Anglo-American precedents, a review of their legislative history and judicial
interpretation is proper.'82 Statutes of American origin
should be construed according to the jurisprudence of the
United States.188   Courts will give weight to the contemporaneous construction placed upon a statute by the
executive officers whose duty it is to enforce it, and, unless such interpretation is clearly erroneous, will ordinarily be controlled thereby.84    It is a rule well established in the interpretation of Custom Laws that, where
there has been a long acquiescence in a regulation by
180 Lamb v. Phipps (1912) 22 Phil. 456, 493.
81 Act 1788; Adm. Code, sec. 13; Zamora v. City of Manila
(1907) 7 Phil. 584 and other Philippine cases. Similar regulation
and rule in Louisiana as to English and French. See Viterbo v.
Freedlander (1887) 120 U. S. 707, 30 L. Ed. 776 and Louisiana cases.
182 U. S. v. De Guzman (1915) 13 0. G. 1173.
188 The rule for the Philippines, U. S. v. De Guzman, Id.; and for
Porto Rico, Diaz v. Porto Rico Railway Co. (1914) 21 Porto Rico
73. So the Supreme Court of the Philippines is justified in following the construction placed by California Courts on a law taken
from California. Castle Bros., Wolf & Sons v. Go Juno (1906)
7 Phil. 144.
184In re Allen (1903) 2 Phil. 630, following Pennoyer v. McConnaughty (1891) 140 U. S. 363, 35 L. Ed. 363.




736


PHILIPPINE GOVERNMENT


which the rights of parties for years have been determined
and adjusted, such interpretation should be followed in
the absence of the most cogent and persuasive reasons to
the contrary."'
Often it is imperative to decide if a statute is mandatory or directory.188 A statute is said to be mandatory
when it requires that certain action shall be taken by those
to whom the statute is addressed, without leaving them
any choice or discretion in the matter, or when, in respect to action taken under the statute, there must be
exact and literal compliance with its terms, or else the
act done will be absolutely void. A statute which directs
the manner in which certain action shall be taken or certain official duties performed is said to be directory when
its nature and terms are such that disregard of it, or want
of literal compliance with it, though constituting an irregularity, will not absolutely vitiate the proceedings
taken under it.'87
Such a construction is, if possible, to be adopted as will
give effect to all provisions of a statute.'88 Statutes in
pari materia are to be construed together. "Interpretare
et concordare leges legibus est optimus interpretandi
modus;" that is, to interpret and (to do it in such a way
as) to harmonize laws with laws, is an ancient maxim
of the law.189
By the rule of ejusdem generis when a statute describes
things of a particular class or kind accompanied by
words of a generic character preceded by the word
18 Kuenzle & Streiff v. Collector of Customs (1908) 12 Phil.
117, citing Robertson v. Downing (1888) 127 U. S. 607, 32 L. Ed.
269; U. S. v. Healey (1895) 160 U. S. 136, 40 L. Ed. 369; Marritt
v. Cameron (1890) 127 U. S. 542, 34 L. Ed. 772.
l See Gardiner v. R6mulo (1914) 26 Phil. 521.
187 Black on Interpretation of Laws, Ch. XIII.
88 Code of Civil Procedure, sec. 287.
18 See Black on Interpretation of Laws, pp. 341-349.




PHILIPPINE LAW


737


"other," the generic word will usually be limited to things
of a kindred nature with those particularly enumerated,
unless there be something in the context or history of
the statute to repel such inference.'90 But this rule must
give away if contrary to the intent appearing from other,
parts of the law.191
Punctuation can be resorted to. "The construction finally adopted should be based upon something more substantial than the mere punctuation found in the printed
Act. If the punctuation of the statute gives it a meaning which is reasonable and in apparent accord with the
legislative will, it may be used as an additional argument for adopting the literal meaning of the words of the
statute as thus punctuated. But an argument based upon
punctuation alone is not conclusive, and the courts will
not hesitate to change the punctuation when necessary,
to give the Act the effect intended by the Legislature,
disregarding superfluous or incorrect punctuation marks,
and inserting others when necessary." 19
The will of the Legislature can be educed by necessary
inference for it is impracticable to give directions for
every detail of application. "That which is implied in a
statute is as much a part of it as what is expressed." 198
Various other intrinsic and extrinsic aids to interpretation
will be adopted by the courts if necessary."H Likewise,
presumptions in aid of construction can be indulged in
by the courts.196
190 Murphy, Morris & Co. v. Collector of Customs (1908) 11 Phil.
456, construing "Other Machinery;" 36 Cyc. 1119; Black on Interpretation of Laws, pp. 203-219.
191U. S. v. Santo Nifio (1909) 13 Phil. 141.
192U. S. v. Hart (1913) 26 Phil. 149, 152.
193 Hanchett v. Weber, 17 Ill. App. 114. Justice as with a constitution-McCullough v. Maryland (1819) 4 Wheat. 316, 4 L. Ed. 579.
194 See Black on Interpretation of Laws, Chs. VI, VII.
19 See Black id., Ch. IV.
P. I. Govt.-47.




738


PHILIPPINE GOVERNMENT


That the rules of interpretation under the civil law are
surprisingly similar to those of the Anglo-American, of
which the previous discussion is mainly a compendium, is
shown by a quotation from Manresa:
"The following rules of interpretation are generally
accepted. The provisions of the Code or of any other
law should not be interpreted separately. Consequently,
the rules established for the interpretation of contracts
may well be applied in the interpretation of the laws. If
the terms of a law are clear and leave no doubt as to the
intention of the legislature the literal sense of its provisions shall be observed. If the words should appear contrary to the evident intention of the legislature, the intention shall prevail. In order to judge as to the intention of the legislator, attention must principally be paid
to the contemporaneous and subsequent laws. However
general the terms of a law may be, there should not be
understood as included therein things and cases different
from those with regard to which the law-makers intended
to legislate. If any provision should admit of different
meanings, it should be understood in the sense most suitable to give it effect. The provisions of a law shall be
interpreted in relation to one another, giving to those that
are doubtful the meaning which may appear from the
consideration of all of them together. Words which may
have different meanings shall be understood in that which
may be in accordance with the object of the law. The
usages and customs of the country shall also be taken
into consideration. As has been said in our comment on
the preceding article, in no case should an interpretation
which is contrary to the law be given. So the principle
which says that where the same reason exists, there must
be an identical provision of the law, can not be successfully set up when there is a legal principle applicable to
the case. Where the law does not distinguish we should
not also distinguish. In cases not excepted, the exception




PHILIPPINE LAW


739


confirms the rule. In the laws where there are exceptions,
interpretation by analogy cannot be applied. Where the
law grants the greatest, it should be understood as allowing or granting the less; but if it prohibits the less, it must
also be understood as prohibiting the greatest. In penal
laws or in franchises liberal interpretation can not be
allowed, but it may be applied to those laws which are
favorable." 196
A suggestion.
~ 177. Annotate.-Even the foregoing hasty description of Philippine law must impress one with the
diversity and ever changing character of our legal system.
Its study and interpretation is no easy task.  Would
it therefore not be advisable for the lawyer to put his
work shop in order, and to have his tools at hand and
always in shape for use?
The habit of legislative bodies constantly to amend and
reamend, points to the suggestion that students and
lawyers for convenience and security should keep their
laws annotated up to date. Many a case has been lost,
because counsel knew only what the law had been or
might be, not what the law then was. Add to these annotations, citations of interpretary decisions of the
courts and miscellaneous notes, and you are as certain of
the law as one can reasonably be. You then have the advantage over him who must waste precious time, perchance searching aimlessly for a law or decision, and who
must give advice which may perhaps be wrong.
Vigilantibus et non dormentibus jura subservient-The
laws serve the vigilant, not those who sleep!


196 I Manresa, Comentarios al Codigo Civil, p. 74.




740


PHILIPPINE GOVERNMENT


REPRESENTATIVE AUTHORITIES.
Karl Gareis, Science of Law (1905).
T. E. Holland, Jurisprudence (11th Ed., 1910).
Jose C. Abreu, The Blending of the Anglo-American
Law with the Spanish Civil Law in the Philippines, 3
Philippine Law Review, May, 1914, p. 285.
Charles S. Lobingier, Blending Legal Systems in the
Philippines, 21 Law Quarterly Review, October, 1905, p.
401.
Jose Laurel, What Lessons May Be Derived by the
Philippine Islands from the Legal History of Louisiana,
2 Philippine Law Journal, Sept., 1915, p. 63.
Walton's Civil Law in Spain and Spanish-America
(1900), pp. 110 et seq.
Willard's Notes to the Spanish Civil Code (1904).
Jose Espiritu, Notes on the Code of Commerce (1915).
W. L. Goldsborough, Mechanics of Codification, 25
Green Bag, Dec., 1913, p. 496.
Najeeb M. Saleeby, Studies in Moro History, Law,
and Religion (1905).
John Davison Lawson, Customs and Usages, 12 Cyc.
1028 et seq.
Black on Interpretation of Laws (1911).
Manresa, Comentarios al Codigo Civil (1907), Vol.
I, pp. 74 et seq.
Philippine Public Laws, 9 volumes.
Compilation of the Acts of the Philippine Commission
(1907).
Philippine Codes (1916, 1917).
Chicago, Rock Island and Pacific Ry. Co. v. McGlinn
(1885) 114 U. S. 542, 29 L. Ed. 270.
Roa v. Collector of Customs (1912) 23 Phil. 315.
U. S. v. Cuna (1908) 12 Phil. 241.
Alzua v. Johnson (1912) 21 Phil. 308.
U. S. v. De Guzman (1915) XIII O. G. 1173.




APPENDIX
PHILIPPINE AUTONOMY ACT-ACT OF CONGRESS OF AUGUST 29, 1916.
(PUBLIC-NO. 240-64TH CONGRESS.)
[S. 3811
An Act to declare the purpose of the people of the United States
as to the future political status of the people of the Philippine Islands,
and to provide a more autonomous government for those islands.
Whereas it was never the intention of the people of the
United States in the incipiency of the War with Spain
to make it a war of conquest or for territorial aggrandizement; and
Whereas it is, as it has always been, the purpose of the
people of the United States to withdraw their sovereignty over the Philippine Islands and to recognize their
independence as soon as a stable government can be
established therein; and
Whereas for the speedy accomplishment of such purpose
it is desirable to place in the hands of the people of the
Philippines as large a control of their domestic affairs
as can be given them without, in the meantime, impairing the exercise of the rights of sovereignty by the
people of the. United States, in order that, by the use
and exercise of popular franchise and governmental
powers, they may be the better prepared to fully assume
the responsibilities and enjoy all the privileges of complete independence: Therefore
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this Act and the name
"The Philippines" as used in this Act shall apply to and
include the Philippine Islands ceded to the United States
Government by the treaty of peace concluded between the
United States and Spain on the eleventh day of April,
741




742


APPENDIX


eighteen hundred and ninety-nine, the boundaries of
which are set forth in Article III of said treaty, together
with those islands embraced in the treaty between Spain
and the United States concluded at Washington on the
seventh day of November, nineteen hundred.
~ 2. That all inhabitants of the Philippine Islands who
were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said
islands, and their children born subsequent thereto, shall
be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United
States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight, and except such others as
have since become citizens of some other country: Provided, That the Philippine Legislature, herein provided
for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing
provisions, the natives of the insular possessions of the
United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or
who could become citizens of the United States under the
laws of the United States if residing therein.
~ 3. That no law shall be enacted in said islands which
shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws. Private property shall not
be taken for public use without just compensation.
That in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel, to demand the nature and cause of the accusation against him,
to have a speedy and public trial, to meet the witnesses
face to face, and to have compulsory process to compel
the attendance of witnesses in his behalf.
That no person shall be held to answer for a criminal




APPENDIX


743


offense without due process of law; and no person for the
same offense shall be twice put in jeopardy of punishment,
nor shall be compelled in any criminal case to be a witness
against himself.
That all persons shall before conviction be bailable by
sufficient sureties, except for capital offenses.
That no law impairing the obligation of contracts shall
be enacted.
That no person shall be imprisoned for debt.
That the privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either
of which events the same may be suspended by the President, or by the Governor-General, wherever during such
period the necessity for such suspension shall exist.
That no ex post facto law or bill of attainder shall be
enacted nor shall the law of primogeniture ever be in
force in the Philippines.
That no law granting a title of nobility shall be enacted,
and no person holding any office of profit or trust in said
islands shall, without the consent of the Congress of the
United States, accept any present, emolument, office, or
title of any kind whatever from any king, queen, prince,
or foreign State.
That excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted.
That the right to be secure against unreasonable
searches and seizures shall not be violated.
That slavery shall not exist in said islands; nor shall
involuntary servitude exist therein except as a punishment
for crime whereof the party shall have been duly convicted. That no law shall be passed abridging the freedom of speech or of the press, or the right of the people
peaceably to assemble and petition the Government for
redress of grievances.
That no law shall be made respecting an establishment




744


APPENDIX


of religion or prohibiting the free exercise thereof, and
that the free exercise and enjoyment of religious profession and worship, without discrimination or preference,
shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No
public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or
other religious teacher or dignitary as such. Contracting
of polygamous or plural marriages hereafter is prohibited.
That no law shall be construed to permit polygamous or
plural marriages.
That no money shall be paid out of the treasury except
in pursuance of an appropriation by law.
That the rule of taxation in said islands shall be
uniform.
That no bill which may be enacted into law shall embrace more than one subject, and that subject shall be expressed in the title of the bill.
That no warrant shall issue but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched and the person or things
to be seized.
That all money collected on any tax levied or assessed
for a special purpose shall be treated as a special fund in
the treasury and paid out for such purpose only.
~ 4. That all expenses that may be incurred on account of the Government of the Philippines for salaries
of officials and the conduct of their offices and departments, and all expenses and obligations contracted for
the internal improvement or development of the islands,
not, however, including defenses, barracks, and other
works undertaken by the United States shall, except as




APPENDIX


745


otherwise specifically provided by the Congress, be paid
by the Government of the Philippines.
~ 5. That the statutory laws of the United States hereafter enacted shall not apply to the Philippine Islands,
except when they specifically so provide, or it is so provided in this Act.
~ 6. That the laws now in force in the Philippines
shall continue in force and effect, except as altered,
amended, or modified herein, until altered, amended, or
repealed by the legislative authority herein provided or by
Act of Congress of the United States.
~ 7. That the legislative authority herein provided
shall have power, when not inconsistent with this Act, by
due enactment to amend, alter, modify, or repeal any law,
civil or criminal, continued in force by this Act as it may
from time to time see fit.
This power shall specifically extend with the limitation
herein provided as to the tariff to all laws relating to revenue and taxation in effect in the Philippines.
~ 8. That general legislative power, except as otherwise herein provided, is hereby granted to the Philippine
Legislature, authorized by this Act.
~ 9. That all the property and rights which may have
been acquired in the Philippine Islands by the United
States under the treaty of peace with Spain, signed December tenth, eighteen hundred and ninety-eight, except
such land or other property as has been or shall be designated by the President of the United States for military
and other reservations of the Government of the United
States, and all lands which may have been subsequently
acquired by the government of the Philippine Islands by
purchase under the provisions of sections sixty-three and
sixty-four of the Act of Congress approved July first,
nineteen hundred and two, except such as may have heretofore been sold and disposed of in accordance with the
provisions of said Act of Congress, are hereby placed




746


APPENDIX


under the control of the government of said islands to be
administered or disposed of for the benefit of the inhabitants thereof, and the Philippine Legislature shall have
power to legislate with respect to all such matters as it
may deem advisable; but acts of the Philippine Legislature
with reference to land of the public domain, timber, and
mining, hereafter enacted, shall not have the force of law
until approved by the President of the United States:
-"Provided, That upon the approval of such an act by the
Governor-General, it shall be by him forthwith transmitted to the President of the United States, and he shall
approve or disapprove the same within six months from
and after its enactment and submission for his approval,
and if not disapproved within such time it shall become
a law the same as if it had been specifically approved:
Provided further, That where lands in the Philippine Islands have been or may be reserved for any public purpose
of the United States, and, being no longer required for
the purpose for which reserved, have been or may be, by
order of the President, placed under the control of the
government of said islands to be administered for the
benefit of the inhabitants thereof, the order of the President shall be regarded as effectual to give the government
of said islands full control and power to administer and
dispose of such lands for the benefit of the inhabitants of
said islands.
~ 10. That while this Act provides that the Philippine
government shall have the authority to enact a tariff law
the trade relations between the islands and the inited
States shall continue to be governed exclusively by laws
of the Congress of the United States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine
Islands shall not become law until they shall receive the
approval of the President of the United States, nor shall
any act of the Philippine Legislature affecting immigration or the currency or coinage laws of the Philippines be



APPENDIX


747


come a law until it has been approved by the President
of the United States: Provided further, That the President shall approve or disapprove any act mentioned in the
foregoing proviso within six months from and after its
enactment and submission for his approval, and if not
disapproved within such time it shall become a law the
same as if it had been specifically approved.
~ 11. That no export duties shall be levied or collected
on exports from the Philippine Islands, but taxes and assessments on property and license fees for franchises; and
privileges, and internal taxes, direct or indirect, may be v
imposed for the purposes of the Philippine government
and the provincial and municipal governments thereof,
respectively, as may be provided and defined by acts of
the Philippine Legislature, and, where necessary to anticipate taxes and revenues, bonds and other obligations may
be issued by the Philippine government or any provincial
or municipal government therein, as may be provided by
law and to protect the public credit: Provided, however,
That the entire indebtedness of the Philippine government
created by the authority conferred herein shall not exceed at any one time the sum of $15,000,000, exclusive of
those obligations known as friar land bonds, nor that of
any Province or municipality a sum in excess of seven
per centum of the aggregate tax valuation of its property
at any one time.
~ 12. That general legislative powers in the Philippines, except as herein otherwise provided, shall be vested
in a legislature which shall consist of two houses, one the
senate and the other the house of representatives, and
the two houses shall be designated "The Philippine Legislature:" Provided, That until the Philippine Legislature
as herein provided shall have been organized the existing Philippine Legislature shall have all legislative authority herein granted to the government of the Philippine
Islands, except such as may now be within the exclusive




748


APPENDIX


jurisdiction of the Philippine Commission, which is so
continued until the organization of the legislature herein
provided for the Philippines. When the Philippine Legislature shall have been organized, the exclusive legislative
jurisdiction and authority exercised by the Philippine
Commission shall thereafter be exercised by the Philippine Legislature.
~ 13. That the members of the senate of the Philippines, except as herein provided, shall be elected for terms
of six and three years, as hereafter provided, by the
qualified electors of the Philippines. Each of the senatorial
districts defined as hereinafter provided shall have the
right to elect two senators. No person shall be an elective
a member of the senate of the Philippines who is not a
qialified elector and over thirty years of age, and who
is not able to read and write either the Spanish or English
language, and who has not been a resident of the Philippines for at least two consecutive years and an actual resident of the senatorial district from which chosen for a
period of at least one year immediately prior to his
election.
~ 14. That the members of the house of representatives shall, except as herein provided, be elected triennially
by the qualified electors of the Philippines. Each of the
representative districts hereinafter provided for shall have
the right to elect one representative. No person shall be
an elective member of the house of representatives who
is not a qualified elector and over twenty-five years of
age, and who is not able to read and write either the
Spanish or English language, and who has not been an
actual resident of the district from which elected for at
least one year immediately prior to his election: Provided,
That the members of the present assembly elected on the
first Tuesday in June, nineteen hundred and sixteen, shall
be the members of the house of representatives from their




APPENDIX


749


respective districts for the term expiring in nineteen hundred and nineteen.
~ 15. That at the first election held pursuant to this
act, the qualified electors shall be those having the qualifications of voters under the present law; thereafter and
until otherwise provided by the Philippine Legislature
herein provided for the qualifications of voters for senators and representatives in the Philippines and all officers elected by the people shall be as follows:
Every male person who is not a citizen or subject of a
foreign power twenty-one years of age or over (except
insane and feeble-minded persons and those convicted in
a court of competent jurisdiction of an infamous offense
since the thirteenth day of August, eighteen hundred and
ninety-eight), who shall have been a resident of the
Philippines for one year and of the municipality in which
he shall offer to vote for six months next preceding the
day of voting, and who is comprised within one of the
following classes:
(a) Those who under existing law are legal voters and
have exercised the right of suffrage.
(b) Those who own real property to the value of 500
pesos, or who annually pay 30 pesos or more of the established taxes.
(c) Those who are able to read and write either Spanish, English, or a native language.
~ 16. That the Philippine Islands shall be divided into
twelve senate districts, as follows:
First district: Batanes, Cagayan, Isabela, Ilocos Norte, 
and Ilocos Sur.
Second district: La Union, Pangasinan, and Zambales.
Third district: Tarlac, Nueva Ecija, Pampanga, and
Bulacan.
Fourth district: Bataan, Rizal, Manila, and Laguna.
Fifth district: Batangas, Mindoro, Tayabas, and
Cavite.




750


APPENDIX


Sixth district: Sorsogon, Albay, and Ambos Camarines.
Seventh district: Iloilo and Capiz.
Eighth district: Negros Occidental, Negros Oriental,
Antique, and Palawan.
Ninth district: Leyte and Samar.
Tenth district: Cebu.
Eleventh district: Surigao, Misamis, and Bohol.
Twelfth district: The Mountain Province, Baguio,
Neuva Vizcaya, and the Department of Mindanao and
Sulu.
The representative districts shall be the eighty-one now
provided by law, and three in the Mountain Province,
one in Nueva Vizcaya, and five in the Department of
Mindanao and Sulu.
The first election under the provisions of this Act shall
be held on the first Tuesday of October, nineteen hundred and sixteen, unless the Governor-General in his discretion shall fix another date not earlier than thirty nor
later than sixty days after the passage of this Act: Provided, That the Governor-General's proclamation shall be
published at least thirty days prior to the date fixed for
the election, and there shall be chosen at such election one
senator from each senate district for a term of three years
and one for six years. Thereafter one senator from each
district shall be elected from each senate district for a
term of six years: Provided, That the Governor-General
of the Philippine Islands shall appoint, without the consent of the senate and without restriction as to residence,
senators and representatives who will, in his opinion, best
represent the senate district and those representative districts which may be included in the territory not now
represented in the Philippine Assembly: Provided further,
That thereafter elections shall be held only on such days
and under such regulations as to ballots, voting, and
qualifications of electors as may be prescribed by the
Philippine Legislature, to which is hereby given authority




APPENDIX


751


to redistrict the Philippine Islands and modify, amend, or
repeal any provision of this section, except such as refer
to appointive senators and representatives.
~ 17. That the terms of office of elective senators and
representatives shall be six and three years, respectively,
and shall begin on the date of their election. In case of
vacancy among the elective members of the senate or in
the house of representatives, special elections may be held
in the districts wherein such vacancy occurred under such
regulations as may be prescribed by law, but senators or
representatives elected in such cases shall hold office only
for the unexpired portion of the term wherein the vacancy occurred. Senators and representatives appointed
by the Governor-General shall hold office until removed
by the Governor-General. 
~ 18. That the senate and house of representatives, respectively, shall be the sole judges of the elections, returns,
and qualifications of their elective members, and each
house may determine the rules of its proceedings, punish
its members for disorderly behavior, and, with the concurrence of two-thirds, expel an elective member. Both
houses shall convene at the capital on the sixteenth day
of October next following the election and organize by
the election of a speaker or a presiding officer, a clerk,
and a sergeant at arms for each house, and such other
officers and assistants as may be required. A majority
of each house shall constitute a quorum to do business,
but a smaller number may meet, adjourn from day to
day, and compel the attendance of absent members. The
legislature shall hold annual sessions, commencing on the
sixteenth day of October, or, if the sixteenth day of
October be a legal holiday, then on the first day following which is not a legal holiday, in each year. The legislature may be called in special session at any time by the
Governor-General for general legislation, or for action
on such specific subjects as he may designate. No special




7.52


APPENDIX


session shall continue longer than thirty days, and no
regular session shall continue longer than one hundred
days, exclusive of Sundays. The legislature is hereby
given the power and authority to change the date of the
commencement of its annual sessions.
The senators and representatives shall receive an annual compensation for their services, to be ascertained by
law, and paid out of the treasury of the Philippine Islands. The senators and representatives shall, in all cases
except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session
of their respective houses and in going to and returning
from the same; and for any speech or debate in either
house they shall not be questioned in any other place.
No senator or representative shall, during the time for
which he may have been elected, be eligible to any office
the election to which is vested in the legislature, nor shall
be appointed to any office of trust or profit which shall
have been created or the emoluments of which shall have
been increased during such term.
~ 19. That each house of the legislature shall keep a
journal of its proceedings and, from time to time, publish
the same; and the yeas and nays of the members of either
house, on any question, shall, upon demand of one-fifth
of those present, be entered on the journal, and every bill
and joint resolution which shall have passed both houses
shall, before it becomes a law, be presented to the Governor-General. If he approve the same, he shall sign it;
but if not, he shall return it with his objections to that
house in which it shall have originated, which shall enter
the objections at large on its journal and proceed to reconsider it. If, after such reconsideration, two-thirds of
the members elected to that house shall agree to pass the
same, it shall be sent, together with the objections, to the
other house, by which it shall likewise be reconsidered,
and if approved by two-thirds of all the members elected




APPENDIX


753


to that house it shall be sent to the Governor-General, who,
in case he shall then not approve, shall transmit the same
to the President of the United States. The vote of each
house shall be by the yeas and nays, and the names of
the members voting for and against shall be entered on
the journal. If the President of the United States approve the same, he shall sign it and it shall become a law.
If he shall not approve same, he shall return it to the Governor-General, so stating, and it shall not become a law:
Prozided, That if any bill or joint resolution shall not be
returned by the Governor-General as herein provided
within twenty days (Sundays excepted) after it shall have
been presented to him the same shall become a law in like
manner as if he had signed it, unless the legislature by
adjournment prevent its return, in which case it shall become a law unless vetoed by the Governor-General within
thirty days after adjournment: Provided further, That
the President of the United States shall approve or disapprove an act submitted to him under the provisions of this
section within six months from and after its enactment
and submission for his approval; and if not approved
within such time, it shall become a law the same as if it had
been specifically approved. The Governor-General shall
have the power to veto any particular item or items of
an appropriation bill, but the veto shall not affect the item
or items to which he does not object. The items or items
objected to shall not take effect except in the manner
heretofore provided in this section as to bills and joint
resolutions returned to the legislature without his
approval. 
All laws enacted by the Philippine Legislature shall be
reported to the Congress of the United States, which
hereby reserves the power and authority to annul the
same. If at the termination of any fiscal year the appropriations necessary for the support of the government for
the ensuing fiscal year shall not have been made, the sevP. I. Govt.-48.




754


APPENDIX


eral sums appropriated in the last appropriation bills for
the objects and purposes therein specified, so far as the
same may be done, shall be deemed to be reappropriated
for the several objects and purposes specified in said last
appropriation bill; and until the legislature shall act in
such behalf the treasurer shall, when so directed by the
Governor-General, make the payments necessary for the
purposes aforesaid.
~ 20. That at the first meeting of the Philippine Legislature created by this Act and triennially thereafter there
shall be chosen by the legislature two Resident Commissioners to the United States who shall hold their office for
a term of three years beginning with the fourth day of
March following their election, and who shall be entitled
to an official recognition as such by all departments upon
presentation to the President of a certificate of election
by the Governor-General of said islands. Each of said
Resident Commissioners shall, in addition to the salary
and the sum in lieu of mileage now allowed by law,
be allowed the same sum for stationery and for the pay
of necessary clerk hire as is now allowed to the Members
of the House of Representatives of the United States, to
be paid out of the Treasury of the United States, and
the franking privilege allowed by law to Members of
Congress. No person shall be eligible to election as Resident Commissioner who is not a bona fide elector of said
islands and who does not owe allegiance to the United
States and who is not more than thirty years of age and
who does not read and write the English language. The
present two Resident Commissioners shall hold office until
the fourth of March, nineteen hundred and seventeen.
In case of vacancy in the position of Resident Commissioner caused by resignation or otherwise, the GovernorGeneral may make temporary appointments until the next
meeting of the Philippine Legislature, which shall then
fill such vacancy; but the Resident Commissioner thus




APPENDIX


755


elected shall hold office only for the unexpired portion
of the term wherein the vacancy occurred.
~ 21. That the supreme executive power shall be
vested in an executive officer, whose official title shall be
"The Governor-General of the Philippine Islands." He
shall be appointed by the President, by and with the advice and consent of the Senate of the United States, and
hold his office at the pleasure of the President and until
his successor is chosen and qualified. The Governor-General shall reside in the Philippine Islands during his official incumbency, and maintain his office at the seat of
government. He shall, unless otherwise herein provided,
appoint, by and with the consent of the Philippine Senate,
such officers as may now be appointed by the GovernorGeneral, or such as he is authorized by this Act to appoint, or whom he may hereafter be authorized by law to
appoint; but appointments made while the senate is not
in session shall be effective either until disapproval or
until the next adjournment of the senate. He shall have
general supervision and control of all of the departments
and bureaus of the government in the Philippine Islands
as far as is not inconsistent with the provisions of this
Act, and shall be commander in chief of all locally created armed forces and militia. He is hereby vested with
the exclusive power to grant pardons and reprieves and
remit fines and forfeitures, and may veto any legislation
enacted as herein provided. He shall submit within ten
days of the opening of each regular session of the Philippine Legislature a budget of receipts and expenditures,
which shall be the basis of the annual appropriation
bill. He shall commission all officers that he may be
authorized to appoint. He shall be responsible for the
faithful execution of the laws of the Philippine Islands
and of the United States operative within the Philippine Islands, and whenever it becomes necessary he may
call upon the commanders of the military and naval




756


APPENDIX


forces of the United States in the islands, or summon
the posse comitatus, or call out the militia or other locally
created armed forces, to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in
case of rebellion or invasion, or imminent danger thereof,
when the public safety requires it, suspend the privileges
of the writ of habeas corpus, or place the islands, or any
part thereof, under martial law: Provided, That whenever
the Governor-General shall exercise this authority, he shall
at once notify the President of the United States thereof,
together with the attending facts and circumstances, and
the President shall have power to modify or vacate the
action of the Governor-General. He shall annually and
at such other times as he may be required make such official report of the transactions of the government of the
Philippine Islands to an executive department of the
United States to be designated by the President, and his
said annual report shall be transmitted to the Congress
of the United States; and he shall perform such additional
duties and functions as may in pursuance of law be delegated or assigned to him by the President.
~ 22. That, except as provided otherwise in this Act,
the executive departments of the Philippine government
shall continue as now authorized by law until otherwise
provided by the Philippine Legislature. When the Philippine Legislature herein provided shall convene and organize, the Philippine Commission, as such, shall cease
and determine, and the members thereof shall vacate their
offices as members of said commission: Provided, That
the heads of executive departments shall continue to exercise their executive functions until the heads of departments provided by the Philippine Legislature pursuant
to the provisions of this Act are appointed and qualified.
The Philippine Legislature may thereafter by appropriate legislation increase the number or abolish any of the
executive departments, or make such changes in the names




APPENDIX


757


and duties thereof as it may see fit, and shall provide for
the appointment and removal of the heads of the executive departments by the Governor-General: Provided,
That all executive functions of the government must be
directly under the Governor-General or within one of
the executive departments under the supervision and control of the Governor-General. There is hereby established a bureau, to be known as the Bureau of Non-Christian tribes, which said bureau shall be embraced in one
of the executive departments to be designated by the Governor-General, and shall have general supervision over the
public affairs of the inhabitants of the territory represented in the legislature by appointive senators and
representatives.
~ 23. That there shall be appointed by the President,
by and with the advice and consent of the Senate of the
United States, a vice governor of the Philippine Islands,
who shall have all of the powers of the Governor-General
in the case of a vacancy or temporary removal, resignation, or disability of the Governor-General, or in case of
his temporary absence; and the said vice governor shall
be the head of the executive department, known as the
department of public instruction, which shall include the
bureau of education and the bureau of health, and he may
be assigned such other executive duties as the GovernorGeneral may designate.
Other bureaus now included in the department of public instruction shall, until otherwise provided by the Philippine Legislature, be included in the department of the
interior.
The President may designate the head of an executive
department of the Philippine government to act as Governor-General in the case of a vacancy, the temporary removal, resignation, or disability of the Governor-General
and the vice governor, or their temporary absence, and
the head of the department thus designated shall exercise




758


APPENDIX


all the powers and perform all the duties of the GovernorGeneral during such vacancy, disability, or absence.
~ 24. That there shall be appointed by the President an
auditor, who shall examine, audit, and settle all accounts
pertaining to the revenues and receipts from whatever
source of the Philippine government and of the provincial
4 and municipal governments of the Philippines, including
trust funds and funds derived from bond issues; and
audit, in accordance with law and administrative regulations, all expenditures of funds or property pertaining to
or held in trust by the government or the Provinces or
municipalities thereof. He shall perform a like duty with
respect to all government branches.
He shall keep the general accounts of the government
and preserve the vouchers pertaining thereto.
It shall be the duty of the auditor to bring to the attention of the proper administrative officer expenditures
of funds or property which, in his opinion, are irregular,
unnecessary, excessive, or extravagant.
There shall be a deputy auditor appointed in the same
manner as the auditor. The deputy auditor shall sign
such official papers as the auditor may designate and perform such other duties as the auditor may prescribe, and
in case of the death, resignation, sickness, or other absence of the auditor from his office, from any cause, the
deputy auditor shall have charge of such office. In case
of the absence from duty, from any cause, or both the
auditor and the deputy auditor, the Governor-General may
designate an assistant, who shall have charge of the
office.
The administrative jurisdiction of the auditor over
accounts, whether of funds or property, and all vouchers
and records pertaining thereto, shall be exclusive. With
the approval of the Governor-General he shall from time
to time make and promulgate general or special rules and
regulations not inconsistent with law covering the method




APPENDIX


759


of accounting for public funds and property, and funds
and property held in trust by the government or any of its
branches: Provided, That any officer accountable for public funds or property may require such additional reports
or returns from his subordinates or others as he may
deem necessary for his own information and protection.
The decisions of the auditor shall be final and conclusive upon the executive branches of the government, except that appeal therefrom may be taken by the party aggrieved or the head of the department concerned within
one year, in the manner hereinafter prescribed. The auditor shall, except as hereinafter provided, have like authority as that conferred by law upon the several auditors of
the United States and the Comptroller of the United
States Treasury and is authorized to communicate directly
with any person having claims before him for settlement,
or with any department, officer, or person having official
relations with his office.
As soon after the close of each fiscal year as the accounts of said year may be examined and adjusted the
auditor shall submit to the Governor-General and the
Secretary of War an annual report of the fiscal concerns
of the government, showing the receipts and disbursements of the various departments and bureaus of the government and of the various Provinces and municipalities,
and make such other reports as may be required of him by
the Governor-General or the Secretary of War.
In the execution of their duties the auditor and the
deputy auditor are authorized to summon witnesses, administer oaths, and to take evidence, and, in the pursuance of these provisions, may issue subpoenas and enforce
the attendance of witnesses, as now provided by law.
The office of the auditor shall be under the general supervision of the Governor-General and shall consist of
the auditor and deputy auditor and such necessary assistants as may be prescribed by law.




760


APPENDIX


~ 25. That any person aggrieved by the action or decision of the auditor in the settlement of his account or
claim may, within one year, take an appeal in writing to
the Governor-General, which appeal shall specifically set
forth the particular action of the auditor to which exception is taken, with the reason and authorities relied on for
reversing such decision.
If the Governor-General shall confirm the action of the
auditor, he shall so indorse the appeal and transmit it to
the auditor, and the action shall thereupon be final and
conclusive. Should the Governor-General fail to sustain
the action of the auditor, he shall forthwith transmit
his grounds of disapproval to the Secretary of War, together with the appeal and the papers necessary to a
proper understanding of the matter. The decision of the
Secretary of War in such case shall be final and
conclusive.
~ 26. That the supreme court and the courts of first
instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law.
The municipal courts of said islands shall possess and exercise jurisdiction as now provided by law, subject in all
matters to such alteration and amendment as may be
hereafter enacted by law; and the chief justice and associate justices of the supreme court shall hereafter be
appointed by the President, by and with the advice and
consent of the Senate of the United States. The judges
of the court of first instance shall be appointed by the
Governor-General, by and with the advice and consent of
the Philippine Senate: Provided, That the admiralty jurisdiction of the supreme court and courts of first instance
shall not be changed except by Act of Congress. That in
all cases pending under the operation of existing laws,
both criminal and civil, the jurisdiction shall continue
until final judgment and determination.




APPENDIX


761


~ 27. That the Supreme Court of the United States
shall have jurisdiction to review, revise, reverse, modify,
or affirm the final judgments and decrees of the Supreme
Court of the Philippine Islands in all actions, cases, causes,
and proceedings now pending therein or hereafter deter-,
mined thereby in which the Constitution or any statute,
treaty, title, right, or privilege of the United States is involved, or in causes in which the value in controversy exceeds $25,000, or in which the title or possession of real
estate exceeding in value the sum of $25,000, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in question; and
such final judgments or decrees may and can be reviewed,
revised, reversed, modified, or affirmed by said Supreme
Court of the United States on appeal or writ of error by
the party aggrieved within the same time, in the same
manner, under the same regulations, And by the same procedure, as far applicable, as the final judgments and decrees of the district courts of the United States.
~ 28. That the government of the Philippine Islands
may grant franchises and rights, including the authority
to exercise the right of eminent domain, for the construction and operation of works of public utility and service,
and may authorize said works to be constructed and maintained over and across the public property of the United
States, including streets, highways, squares, and reservations, and over similar property of the government of
said islands, and may adopt rules and regulations under
which the provincial and municipal governments of the
islandsmay grant the right to use and occupy such public
property belonging to said Provinces or municipalities:
Provided, That no private property shall be damaged or
taken for any purpose under this section without just compensation, and that such authority to take and occupy land
shall not authorize the taking, use, or occupation of any
land except such as is required for the actual necessary




762


APPENDIX


purposes for which the franchise is granted, and that no
franchise or right shall be granted to any individual, firm,
or corporation except under the conditions that it shall
be subject to amendment, alteration, or repeal by the
Congress of the United States, and that lands or right of
use and occupation of lands thus granted shall revert to
the governments by which they were respectively granted
upon the termination of franchises and rights under
which they were granted or upon their revocation or repeal. That all franchises or rights granted under this
Act shall forbid the issue of stock or bonds except in
exchange for actual cash or for property at a fair valuation equal to the par value of the stock or bonds so issued; shall forbid the declaring of stock or bond dividends, and, in the case of public-service corporations, shall
provide for the effective regulation of the charges thereof,
for the official inspection and regulation of the books and
accounts of such corporations, and for the payment of a
reasonable percentage of gross earnings into the treasury
of the Philippine Islands or of the Province or municipality within which such franchises are granted and exercised: Provided further, That it shall be unlawful for any
corporation organized under this Act, or for any person,
company, or corporation receiving any grant, franchise,
or concession from the government of said islands, to use,
employ, or contract for the labor of persons held in involuntary servitude; and any person, company, or corporation so violating the provisions of this Act shall forfeit
all charters, grants, or franchises for doing business in
said islands, in an action or proceeding brought for that
purpose in any court of competent jurisdiction by any
officer of the Philippine government, or on the complaint
of any citizen of the Philippines, under such regulations
and rules as the Philippine Legislature shall prescribe,
and in addition shall be deemed guilty of an offense, and
shall be punished by a fine of not more than $10,000.




APPENDIX


763


~ 29. That, except as in this Act otherwise provided,
the salaries of all the officials of the Philippines not appointed by the President, including deputies, assistants,
and other employees, shall be such and be so paid out of
the revenues of the Philippines as shall from  time to
time be determined by the Philippine Legislature; and if
the legislature shall fail to make an appropriation for
such salaries, the salaries so fixed shall be paid without the
necessity of further appropriations therefor. The salaries
of all officers and all expenses of the offices of the various
officials of the Philippines appointed as herein provided
by the President shall also be paid out of the revenues
of the Philippines. The annual salaries of the followingnamed officials appointed by the President and so to be
paid shall be: The Governor-General, $18,000; in addition
thereto he shall be entitled to the occupancy of the buildings heretofore used by the chief executive of the Philippines, with the furniture and effects therein, free of
rental; vice governor, $10,000; chief justice of the supreme court, $8,000; associate justices of the supreme
court, $7,500 each; auditor, $6,000; deputy auditor,
$3,000.
~ 30. That the provisions of the foregoing section
shall not apply to provincial and municipal officials; their
salaries and the compensation of their deputies, assistants,
and other help, as well as all other expenses incurred by
the Provinces and municipalities, shall be paid out of the
provincial and municipal revenues in such manner as the
Philippine Legislature shall provide.
~ 31. That all laws or parts of laws applicable to the
Philippines not in conflict with any of the provisions of
this Act are hereby continued in force and effect
Approved, August 29, 1916.




i




INDEX.
Prepared by Mr. Chas. W. Bradrick, Law Librarian, Michigan State
Library.
(References are to Pages.)
ABREU, ANTONIO ALVAREZ DE,
On powers of governors-general under Spain, 59.
ABREU, JOSE C., Judge of Court of First Instance,
On blending of laws in the Philippines, 673.
ACCUSED,
Rights of, in criminal prosecutions, 545.
ACQUISITION OF TERRITORY BY THE UNITED STATES,
Expansion of the United States, 303.
Purpose in acquiring territory, 316, 319.
Right to acquire territory, 306.
Right to govern territory, 314.
ADMINISTRATIVE CODE,
Department of Mindanao and Sulu, 697.
Philippine Government, 272, 689.
ADMISSION OF PHILIPPINES AS A STATE,
Right of United States, 335.
AGONCILLO, FELIPE,
On recognition of the Philippine Republic, 191.
AGUINALDO, EMILIO,
Capture of, 127.
Dictator and President of the Philippine Republic, 129.
Inaugural message of, 137.
On the treaty of Biak-na-bato, 110n.
765




766


INDEX


ALCALDES MAYORES,
Functions under Spanish administration, 65.
ALIENS,
Admission or rejection of, 480.
Expulsion of, 489.
Jurisdiction over, 491.
Rights and privileges of, 490.
ALLEGIANCE,
To the United States, 390.
AMERICAN      ADMINISTRATION.        See GOVERNMENT OF THE
PHILIPPINE ISLANDS.
AMNESTY PROCLAMATION,
Issued by the President of the United States, 127.
ANNOTATIONS,
Value of, 739.
APPEALS,
Criminal cases, 575.
From Governor-General, Spanish administration, 62.
To United States Supreme Court, 281.
APPROPRIATIONS,
Amount of, 293.
Fundamental laws concerning, 662.
ARANETA, GREGORIO, Attorney-General,
On emigration, right of, 501.
On pre-Spanish criminal penalties, 39.
ARELLANO, CAYETANO S., Chief Justice, Philippine Supreme
Court,
On Philippine criminal procedure, 681.
On Treaty of Paris, effect on citizenship, 497.
ARREST,
Legislators exempt from, 457.
Without warrants, 597.


ASAMBLEA CONSULTATIVA,
Final scheme of Spain, 93.




INDEX                           767
ASSEMBLY,
Right of, 626. 633.
ATTAINDER,
Bills of, prohibited, 585.
ATTORNEY-GENERAL,
Duties of, 286.
Duties under the Audiencia, 75.
AUDIENCIA,
Organization, powers, 61, 73.
AUTHENTICATION,
Statutes and records, 468.
AUTONOMY,
Legislation conferring, 231, 741.
BAGUIO,
Advisory council, 290.
Officers, 290.
BAIL,
Excessive, not to be required, 587.
Release on, right of accused, 573.
BARANGAY,
Unit of government, pre-Spanish, 31.
BASIC PRINCIPLES,
Applied to the Philippines, 425.
BATES TREATY. See TREATIES.
BIAK-NA-BATO. See TREATIES.
BILL OF RIGHTS,
Philippine, 425.
United States, some rights withheld from the Philippines, 430.
BILLS AND RESOLUTIONS,
Procedure and veto, 278.




768


INDEX


BOUNDARIES,
Municipal and provincial, adjustment of, 455.
Philippine Islands, 8.
BRYCE, LORD,
On public opinion, 627.
BUDGET,
Annual, of Philippine Government, 293.
BUREAU OF INSULAR AFFAIRS,
Functions, officers, 356.
BUREAUS OF PHILIPPINE GOVERNMENT,
Present administration, 275.
CABINETS,
Of Revolutionary Government, 131.
CADENA PERPETUA,
As cruel and unusual punishment, 589.
CALANTIAO,
Penal Code of, 35, 38.
CARSON, ADAM C., Associate Justice, Philippine Supreme Court,
On binding force of organic laws, 396.
On retroactive penal laws, 584.
CASE LAW,
Judge-made law in the Philippines, 717.
CESSION OF PHILIPPINES TO FOREIGN POWER,
Right of United States, 337.
CHECKS AND BALANCES. See DIVISION OF POWERS.
CHINESE,
Exclusion of, 485.
Registration of, 487.
Treaty between United States and China, 400.


CHOATE, RUFUS,
On government of laws and not of men, 433n.




INDEX


769


CITIZENSHIP,
Filipinos, 384. 392.
Spaniards in the Philippines, Treaty of Paris, 495.
United States, who are citizens of, 493.
CIVIL CODE,
Proposed for the Philippines, 690.
CIVIL GOVERNMENT,
Establishment of, under American administration, 222, 224.
CIVIL LAW OF THE PHILIPPINES,
Where found, 687.
CIVIL PROCEDURE,
Code of, 685.
CODIFICATION OF LAWS,
Committees, results, 687.
COLIN, FRANCISCO,
On pre-Spanish judicial procedure, 41, 42.
COLLEGES IN THE PHILIPPINES,
List of important, 297.
COLONIAL POLICY,
American, 260, 741.
Spanish, 49.
COMMERCIAL LAW OF THE PHILIPPINES,
Where found, 687.
COMMITTEES,
Of revolutionary government, 139n.
COMMON CARRIERS,
Limitations on regulation of, 613.
COMMON LAW,
English and American, 698.
How much of it binding in Philippines, 700.
Philippine, 721.
Spanish, 704.
P. I. Govt.-49.




770


INDEX


CONGRESS,
Revolutionary, 126.
United States,
Acts of, extended to the Philippines, 401.
Power of, to govern territories, 324.
How exercised in the Philippines, 352.
CONSEJO DE ADMINISTRACION,
Functions of the, 63.
CONSEJO DE FILIPINAS,
Administration of, 51.
CONSTITUTION OF THE UNITED STATES,
Part applicable to the Philippines, 396.
CONSTITUTIONS OF PHILIPPINE GOVERNMENTS,
Revolutionary,
Earlier than the Malolos Constitution, 144.
Malolos Constitution, 141.
So-called, under American administration,
Organic laws, 401, 409n, 418.
CONTRACTS,
Statutes impairing obligations of, 653.
COOLEY, THOMAS M., Justice, Michigan Supreme Court,
On delegation of powers, 451.
On freedom of speech and press, 627, 628.
On reasonable bail, 588.
COOPER LAW,
Amending Philippine Bill, 407.
CORPORATIONS,
Foreign, right to engage in business, 492.
CORRECTIONAL CODE,
Proposed, 691.
CORTES OF SPAIN,
Representation of the Philippines in, 94.






INDEX                          771
COUNCIL OF THE INDIES,
Control of, over the Philippines, 51.
COUNSEL,
Right of accused to assistance of, 575.
COURT RULES. See RULES OF COURT.
COURTS,
American administration, 198, 280.
Spanish administration, 61, 72.
COURTS OF FIRST INSTANCE,
American administration, 284.
CRIMINAL LAW OF THE PHILIPPINES,
Where found, 687.
CRIMINAL PROCEDURE,
Code of, 681.
CRUEL AND UNUSUAL PUNISHMENT,
Not to be inflicted, 589.
CUSTOMS,
Having force of law, 708.
DANTE,
On purpose of government, 22.
DAY, WILLIAM R., Associate Justice, United States Supreme
Court,
On double jeopardy, 562.
DEBATE,
Liberty of, for legislators, 457.
DEBT,
Imprisonment for, prohibited, 603.
DEEDS,
Registration of, 287.
DEFINITIONS. See WORDS AND PHRASES.




772


INDEX


DELEGATES,
Foreign, of Revolutionary Government, 133.
DELEGATION OF POWER,
Legislative power delegated to Board of Public Utility Commissioners, 614.
Limitations on, 450.
Police power delegated to municipalities, 531.
DEWEY, GEORGE, Admiral, United States Navy,
On promise of independence, 121n.
DICTATORIAL GOVERNMENT,
Proclamation and organization, 123.
DIVISION OF POWERS,
Philippine Government, 441.
Theory, 436.
DUE PROCESS OF LAW,
Criminal prosecutions, 558.
Right to, 605.
Taxation, 513.
What constitutes, 615.
ECCLESIASTICAL ADMINISTRATION,
Civil and judicial functions of priests under Spanish rule, 75.
EDUCATION. See also SCHOOLS.
Duty of Philippine Government, 649.
Gabald6 Act, appropriation for barrio schools, 686.
ELECTIONS,
Under American administration,
First election held, 199.
When held under present laws, 276.
Under Revolutionary Government, 154.


EMIGRATION,
Right of, 501.






INDEX


773


EMINENT DOMAIN,
Compensation, measure of, 527.
Power of, 508, 522.
Purposes for which, may be exercised, 527.
What constitutes a 'taking," 525.
EMPLOYEES,
Suspension and removal of, 463.
EQUAL PROTECTION OF THE LAWS,
Right to, 605, 618.
EXECUTIVE DEPARTMENTS,
Present administration, 275.
EXECUTIVE ORDERS,
Proclamations, rules, regulations, circulars, 692.
EXEMPTIONS,
Taxation, 518, 641.
EXPATRIATION,
Right of, 501.
EXPORTS AND IMPORTS,
Annual value of, 292.
EX POST FACTO LAWS,
Prohibited, 580.
EXTRADITION,
Offenses extraditable, 475n.
Provisions re, 471.
EXTRA-LEGAL FORCES,
Societies, clubs, organizations, assisting government, 297.
FEDERAL PARTY,
Assistance of, during American reconstruction, 210.
FIELD, STEPHEN J., Associate Justice, United States Supreme
Court,
On bills of attainder, 585.




774


INDEX


FILIPINOS,
Citizenship of, 384, 392.
FINANCE. See REVENUES.
FINES,
Excessive, prohibited, 589.
FOREIGN COUNTRY,
Philippines not a, 370.
GABALD5 ACT,
Appropriation for barrio schools, 686.
GOVERNMENT,
Classes and forms of, 15, 17.
Definition of, 10, 13, 14.
Functions of, 18.
Necessity of, 14.
Purpose of, 20.
Study of, why necessary, 24.
Tests of, 23.
Theoretical and practical, 23.
GOVERNMENT OF THE PHILIPPINE ISLANDS,
American administration,
Defects and merits of, 298.
Governmental steps, 166.
Acquisition by the United States, 167.
Autonomy, 231.
Civil government, 214.
Filipino co-operation, 210.
Independence, 232.
Investigation and conciliation, 205.
Military government, 196.
Self-government, extension of, 226.
Jurisdictional limits, 8.
Legality of organization, 383.
Limitations on power of, 407.
Municipal government, 289.
Outline of present administration, 272.
Provincial government, 288.
Definition of term, 1, 14n.
Dictatorial Government, 123.




INDEX


775


GOVERNMENT OF THE PHILIPPINE ISLANDS-continued
Pre-Spanish government, 27.
Forms of, 30.
Revolutionary Government, 109, 124.
Cabinets, 131.
Foreign delegates, 133.
Spanish administration, 46.
Results of, 98.
GOVERNMENT OF THE UNITED STATES,
Republican in form, 16.
GOVERNOR-GENERAL,
American administration,
Acts not controlled by Supreme Court, 444.
Appointment, 272.
Powers and duties, 273, 455, 489.
Spanish administration,
Administrative agencies of, 64.
Appointment, term, 57.
Functions of, 60.
Salary, 58.
Succession, order of, 58.
HABEAS CORPUS,
Right to writ, and suspension of same, 444, 578.
HISTORY OF PHILIPPINES,
Periods of, 7.
Revolutions, 109.
HOLMES, OLIVER WENDELL, Associate Justice, United States
Supreme Court,
On immunity of governments from being sued, 505.
HOME RULE. See SELF-GOVERNMENT.
HOUSE OF REPRESENTATIVES. See also LEGISLATURE.
Name changed from Philippine Assembly, 231.


IMMIGRATION,
Laws regulating, 483.




776


INDEX


IMMUNITY FROM SUITS,
Attribute of sovereignty, 502.
Philippine Government, 507.
IMPRISONMENT FOR DEBT,
Prohibited, 603.
INCOMPATIBILITY,
Of offices, 462.
INDEBTEDNESS,
Bonded, 293n.
Limitations on amount of, 665.
INDEPENDENCE,
Declaration of, by revolutionary government, 126.
Desire for, as cause of revolution against Spain, 115.
Proclaimed at Cavite, 124.
Promised by the United States, 120.
Provisions for in Jones Bill, 231.
Qualifications of Filipinos for, 241.
Right of United States to grant, 348.
INSULAR CASES,
Doctrine of the, 319.
JEFFERSON, THOMAS, President of the United States,
On power of the United States to alienate territory, 344n.
JEOPARDY,
What constitutes double, 560.
When accused is placed in, 568.
JOHNSON, E. FINLEY, Associate Justice, Philippine Supreme
Court,
On division of powers in the Philippines, 443.
On measure of damages in eminent domain proceedings, 529.
On police power, 534.
On right of privacy, 594.
JONES BILL. See PHILIPPINE AUTONOMY ACT.


JUDGE-MADE LAW,
In the Philippines, 717.




INDEX


777


JUDGES,
Courts of First Instance. 284.
Justices of the Peace, 284.
Supreme Court, 282.
JUDICIARY,
Civil liability of, 467.
Pre-Spanish, 40.
Spanish administration, 72.
JUNTA DE AUTORIDADES,
Functions of, 62.
JURISDICTION OF COURTS,
Courts of record, 285.
Justice courts, 284.
Supreme Court of the United States, 281.
JURY TRIAL,
Right to, not extended to the Philippines, 376, 430.
JUSTICES OF THE PEACE,
American administration,
Appointment, term, removal, 284.
Jurisdiction, 284.
Salary, 285.
Spanish administration, 74.
KATIPUNAN,
Objects of, 119.
KORAN, THE,
Recognized as Moro law, 714.
LA LIGA FILIPINA,
Objects of, 119.
LAND REGISTRATION,
Torrens System, General Office, 286.
LANGUAGES,
Official, of the courts, 281.




778


INDEX


LAWS. See also STATUTES.
Organic,
In force, 411.
List of, complete, 412.
Unwritten, 698.
Written,
American and Filipino, 680.
Spanish, 673.
Extended to the Philippines, 52.
LEGASPI, MIGUEL LOPEZ DE,
Conquest of the Philippines by, 46.
LEGISLATION. See also LAWS and STATUTES.
Controlled by Congress and the courts, 354.
Enacting clause of bills, 652.
Impairing obligations of contracts, 653.
Limitations on, 446.
Pre-Spanish, 35.
Resolutions, joint and concurrent, 692.
Second Philippine Commission, 218.
Subject and title of bills, 650.
LEGISLATURE,
Philippine Assembly, 228.
Philippine Commission, 226.
Philippine Legislature,
House of Representatives, 277.
Limitations on power of, 278, 448.
Qualifications of members, judges of, 457.
Senate, 277.
Sessions, regular and special, 276.
LIMITATIONS,
On police power, 541.
On power of Philippine Government, 407.
On power of Philippine Legislature, 278.
On taxing power, 509, 512.
LOCAL GOVERNMENT. See SELF-GOVERNMENT, LOCAL.


LUW ARAN CODE,
Magindanao Code of Laws, 715.




INDEX                          779
MABINI, APOLINARIO,
On causes bringing Philippine revolution to an end, 128.
On causes of Philippine revolution, 112.
On division of powers, 439.
On independence, hope of Filipinos, 122.
On liberty, 609.
On theory and practice of Government, 23.
MAGINDANAO CODE. See LUWARAN CODE.
MAGNA CARTA of the Philippines.
Instructions to Second Philippine Commission, 215.
MAGOON, CHARLES E.,
On sovereignty of Philippine Islands, 271.
MAJORITY RULE,
Principles of, 459.
MALOLOS CONSTITUTION. See CONSTITUTIONS.
MANILA,
Founded by Legaspi, 71.
Home rule granted in 1916, 227.
Municipal court, 285.
Officers of, 289.
Population, 4.
MANRESA, JOSE M.
On statutory construction, 738.
MARRIAGE,
Regulated by general order of Military Governor, 203, 682.
MARSHALL, JOHN, Chief Justice, United States Supreme Court,
On taxing power, 521.
MATTHEWS, STANLEY, Associate Justice, United States Supreme Court,
On government of laws and not of men, 434.


MAURA LAW,
Provincial and municipal councils, 69, 71.




780


INDEX


McKINLEY, WILLIAM, President of the United States,
On fundamental rights, 425.
On Philippine policy, 262.
On public education in the Philippines, 649.
MILITARY GOVERNOR,
Orders issued by, 680.
MILITARY RULE,
Authority of military government, basis of, 203.
Civil procedure regulated, 203.
Courts established, 198.
Elections under, 199.
Establishment of, 196.
Marriage regulated, 203.
Schools established, 198.
MILLER, SAMUEL F., Associate Justice, United States Supreme
Court,
On bills of attainder, 586.
On division of powers, 437, 440.
On government of laws and not of men, 435.
MILLET, F. D.,
On the opening of the Revolutionary Congress, 135.
MINDANAO AND SULU,
Administrative Code, 697.
Departmental and provincial governments, 291.
Officers, 291.
MINISTERIO DE ULTRAMAR,
Administration of, 51.
MOHAMMEDAN LAW,
Recognized by the Philippine Government, 712.
MONOPOLIES,
Under Spanish administration, 85.
MONTESQUIEU, BARON DE,
On division of powers, 436.
On liberty, 610.




INDEX


781


MORELAND, SHERMAN, Associate Justice, Philippine Supreme
Court,
On division of powers, 442, 447n.
On power of judiciary, 449.
On right to privacy, 596.
MORGA, ANTONIO DE,
On pre-Spanish native government, 28.
MUNICIPAL COURT,
City of Manila, 285.
MUNICIPAL GOVERNMENTS,
American administration,
Exempt from taxation, 519.
Indebtedness, limitation on, 665.
May sue and be sued, 508.
Officers, elections, powers, 289.
Ordinances and resolutions, 698.
Police power of, 535.
Spanish administration, 69.
NATIONALITY,
Rise of Philippine, 117.
NEGROS,
Civil government under Military Governor, 202.
NOTARIES PUBLIC,
Appointment, terms, 287.
OFFICERS,
American administration.
Acts controlled by the courts, 445.
Baguio, 290.
Bureau of Insular Affairs, 356.
Criminal liability, 465, 467.
De facto and de jure, 461.
Insular government. 272.
Interest disqualifying, 463.
Law of, 460.
Manila, 289.
Mindanao and Sulu, 291.
Municipal governments, 289.




782


INDEX


OFFICERS-continued
Negligence of, when Insular government liable, 467.
Provincial governments, 288.
Register of deeds, 287.
Resident commissioners to the United States, 359.
Suspension and removal, 463.
Title or gift from foreign rulers must not be accepted, 659.
Spanish administration,
Insular government, 64.
Municipal governments, 69.
Provincial governments, 64.
OPEN PORTS,
Three in the Philippines, 486.
ORGANIC LAW,
Fundamental laws, 395.
List of, complete, 412.
List of those now in force, 411.
OSMENA, SERGIO, Speaker of Philippine Assembly,
On the desire of Filipinos for independence, 349.
PARTIES,
Political, 128, 129, 298.
Membership of First Philippine Assembly, 230.
PASSPORTS,
Issued by the Governor-General, 480.
Issued to Filipinos, 391.
PENAL CODE,
Of Calantiao, 35, 38.
PENAL LAWS,
Basis of, 295.
Pre-Spanish, 38.
PETITION,
Right of, 626, 633.


PHILIPPINE ASSEMBLY,
Institution of, 228.




INDEX


783


PHILIPPINE AUTONOMY ACT,
Jones Bill, 410.
Text of, 741.
PHILIPPINE BILL,
Act of July 1, 1902, 407.
PHILIPPINE COMMISSION,
Acts of the, 682.
First,
Appointment, instructions, 205.
Conclusions and report, 208n.
Second,
Appointment, instructions, 214.
Legislation passed by, 218
PHILIPPINE ISLANDS,
Area, 3.
Boundaries of, 8.
Description of, 3.
Discovery of, 2.
Names formerly given to, 3.
Part of the United States, 381.
PHILIPPINE LAW,
Subordinate to organic law, 668.
Classification, 672.
Sources and development, 670.
Unwritten, 698.
Written,
American and Filipino, 680.
Spanish, 673.
PHILIPPINE POLICY,
Democratic, 267.
Republican, 260.
PHILIPPINE PROBLEM.
Solution, 232.
PHILLIPS, WENDELL,
On freedom of speech, 627.




784


INDEX


PLASENCIA, JUAN DE,
On penalties of the Penal Code of Calantiao, 38
On pre-Spanish laws, 36.
POLICE,
American administration,
Insular, 294.
Municipal, 295.
Spanish administration,
Cuadrilleros, 91.
Guardia civil, 91.
POLICE POWER,
Attribute of sovereignty, 508, 530.
-Limitations upon the legislature, 541.
Obligations of contracts impaired, 658.
Regulation of professions, occupations and trades, 537.
Regulations must be reasonable, 543.
POLITICAL LAW OF THE PHILIPPINES,
Where found, 687.
POLITICAL PARTIES. See PTrrIES.
POLYGAMY,
Prohibited, 661.
POPULATION,
Growth of, 106n.
Number of inhabitants, 4.
Racial divisions, 5.
PORTO RICO,
Status of, 319.
PRE-SPANISH     GOVERNMENT,
Civilization of inhabitants, 27.
Defects of, 42.
Inter-group relations, 32.
Judicial procedure, 40.
Legislation, 35.


PRESS,
Freedom of the, 626.




INDEX                          785
PRESUMPTIONS,
Innocence, 576
PRIMOGENITURE,
Law of, not to be enacted, 660.
PRISONS,
Insular, provincial and municipal prisons and jails, 295.
PRIVILEGES AND IMMUNITIES,
Individuals, 543.
Legislators, 457.
PROCEDURE,
Appeals to United States Supreme Court, 281.
Civil procedure regulated by Military orders, 203.
Courts of the Philippines, 285.
Pre-Spanish, 40.
PROCLAMATION,
Aguinaldo, Emilio,
Establishing Dictatorial Government, 123.
Organizing Revolutionary Government, 124.
Commanding General, American Army,
Assuming military control, 196.
President of the United States,
Claiming sovereignty, 126.
Granting pardon and amnesty, 127.
PROPERTY,
Right to, 611.
PROVINCIAL GOVERNMENTS,
American administration,
Classes, 288.
Indebtedness, limitation on, 665.
Officers, 288.
Resolutions, 698.
Subject to civil suits, 508.
Spanish administration,
Officers, 64, 67.


PUBLIC OFFICERS. See OFFICERS.
P. I. Govt.-50.




786


INDEX


PUBLIC ORDER,
Maintenance of, 294.
PUBLIC SCHOOLS. See SCHOOLS.
PUBLIC UTILITY COMMISSIONERS,
Delegated legislative powers, 614.
QUEZON, MANUEL, Resident Commissioner,
On American administration in the Philippines, 299n.
RELIGIOUS LIBERTY,
Freedom of religion under Malolos Constitution, 141.
Freedom of religion under present fundamental laws, 634.
RELIGIOUS ORDERS,
Work of, under Spanish administration, 77.
REMEDIAL CODE,
Proposed, 691.
RESIDENCIA,
Under Spanish administration, 62.
RESIDENT COMMISSIONERS,
Appointment, term, salary, duties, 359.
RESOLUTIONS,
Joint and concurrent, of Legislature, 692.
RETENTION OF THE PHILIPPINES,
Reasons for, 181.
REVENUE,
Present Philippine Government, 292.
Spanish administration, 80.
REVOLUTIONARY GOVERNMENT,
Cabinet of, 131.
Character of, 155.
Congress of, 124, 134.
Constitution of, 124.
Elections, 154.
Foreign delegates of, 133.




INDEX


787


REVOLUTIONARY GOVERNMENT-continued
Governmental agencies of, 153.
History of revolutionary movements, 109.
Taxation, 153.
REVOLUTIONS,
Against Spain, causes, 111.
Against the United States, causes, 120.
RIGHTS,
Fundamental, of persons, 543.
Accused in criminal prosecutions, 545.
RIZAL, JOSE,
On frequent changes in governors-general, 57.
On inter-group relations in pre-Spanish days, 33.
On purpose of government, 21.
On reform asked from Spain, 111.
ROMUALDEZ, NORBERTO, Judge of Court of First Instance,
On pre-Spanish civilization, 43.
ROOSEVELT, THEODORE, President of the United States,
On the American-Philippine policy, 263.
ROOT, ELIHU, Secretary of War of the United States,
On the relation between the United States and the Philippine
Islands, 331.
RULES OF COURT,
Authorization, rules issued, 695.
SALARIES,
Officials of the Insular Government, 280.
SALEEBY, DR NAJEEB M.,
On the Luwaran, the Magindanao Code, 715.
SAN ANTONIO, JUAN FRANCISCO DE,
On pre-Spanish government, 31.
On pre-Spanish laws, 37.




788


INDEX


SCHOOLS,
American administration,
Duty of Philippine Government, 649.
Established by Military Government, 198.
Gabald6 Act, appropriations for barrio schools, 686.
Private institutions, 297.
Public institutions, 295.
Spanish administration, 88.
SCHURMAN       COMMISSION.      See   PHILIPPINE  COMMISSION,
FIRST.
SEARCHES AND SEIZURES,
For sanitary purposes, 598.
Unreasonable, security against, 593.
Warrants for, 599.
SELF-GOVERNMENT,
Insular,
Filipinization begun, 228.
Jones Bill, 231.
Local,
Municipalities,
American administration, 226, 643.
Spanish administration, 91.
Principle of, 452n.
SENATE,
Created by the Jones Bill, 231.
SHERIFFS,
Duties, compensation, 287.
SINGSON, VICENTE, Member of Philippine Commission,
On division of powers in Philippine Government, 441.
SLAVERY,
Pre-Spanish, 34.
Prohibited, 620.
SMITH, ADAM,
Maxims for the imposition of taxes, 512.




INDEX


789


SOCIETIES,
Organizations assisting the government, 297.
SOVEREIGNTY,
American, basis for, 190, 370.
Transfer of, effect on laws, 675.
SPANISH ADMINISTRATION,
History and results, 46.
SPEECH,
Freedom of, 626.
SPOONER AMENDMENT,
Government changed from military to civil, 22,.
STARE DECISIS,
Doctrine adhered to, 720.
STATUS,
Filipinos as individuals, 384, 392.
Non-contiguous territory other than Philippines, 362.
Philippine Islands, 362, 392.
STATUTES,
General provisions,
Enacting clause, 652.
Impairing obligations of contracts, 653.
Repeal always possible, 456.
Subject and title of bills, 650.
Particular laws,
American and Filipino,
General orders of the Military Governor, 680.
Koran, 714.
Luwaran, 715.
Philippine Commission, Acts of, 402, 682.
Philippine Legislature, Acts of, 685.
United States statutes extended to the Philippines, 401.
United States statutes in force without express extension, 403.
Sulu Code, 716.
Spanish, 673.
Particular laws in force, 678.




790


INDEX


STATUTORY CONSTRUCTION,
Canons of, 722.
Legislative intent governs, 726.
Other principles, 728.
STORY, JOSEPH, Associate Justice, United States Supreme Court,
On the purpose of government, 21.
SUFFRAGE,
Australian ballot system, 647.
Principalia under Spanish administration, 71.
SULU CODE,
Recognized as Mohammedan law, 716.
SUPREME COURT OF THE PHILIPPINES,
American administration,
Established by Military Government, 198.
Justices, appointment, term, rules, 283.
Salaries, 280.
Spanish administration, 61.
SUPREME COURT OF THE UNITED STATES,
Appellate jurisdiction, 281.
Procedure, 281.
TAFT, WILLIAM H., Governor-General, President of the United
States,
On disposition of Philippine Islands, 339.
On Philippine policy, 265.
On religious liberty, 639.
On sale of Philippine Islands, 340.
TAXATION,
American administration,
Assessment and collection, method, 520.
Attribute of sovereignty, 508.
Classification for purposes of, 517.
Exemptions, 518, 641.
Jurisdiction for purposes of, 519.
Limitations on power, 509, 512.
Public purpose, 509, 514.
Restrictions on exercise of power of, 513.
Uniformity of, 510, 516,




INDEX


791


TAXATION-continued
Revolutionary Government, 153.
Spanish administration, 80.
TITLES OF NOBILITY,
Statutes conferring, prohibited, 639.
TITLE TO THE PHILIPPINES,
American, 190.
TORRENS SYSTEM,
Registration of land titles, 285.
TREASON,
Definition, 600.
Witnesses necessary for conviction, 60L
TREATIES,
Bates Treaty, 201.
Biak-na-bato, 110.
Paris, 167.
United States, affecting the Philippines, 400.
TRENT, GRANT T., Associate Justice, Philippine Supreme Court,
On citizenship of Spaniards in the Philippines, 499.
TRIALS,
Right of accused to speedy and public trial, 545, 552.
UNIFORMITY OF LAWS,
Requirements, 619.
UNITED STATES,
Government of, 16.
Expansion of, 303.
Right to acquire territory, 306.
Right to dispose of Philippines, 333.
Right to govern territory, 314.
UNIVERSITY OF THE PHILIPPINES,
Foundation of, 686.


UNWRITTEN LAW,
Customary law, 708




792


INDEX


UNWRITTEN LAW-continued
English and American common law, 698
Mohammedan law, 712.
Philippine common law, 721.
Spanish common law, 704.
VETO POWER,
On Philippine legislation, 278, 354.
VICE-GOVERNOR,
Appointment, duties, 272.
VISITADOR,
Under Spanish administration, 62.
VOTING. See SUFFRAGE.
WEBSTER, DANIEL,
On liberty, 611n.
WILLOUGHBY, PROFESSOR,
On executive rules, 693.
WILSON, WOODROW, President of the United States,
On functions of government, 19.
On government, 10.
On Philippine policy, 267.
On purpose of government, 21.
On responsibilities of the legislator, 280.
On independence, expected or promised, 123.
WITNESSES,
Against self, 569.
Confrontation with, 554.
Cross-examination of, 554.
Self-incrimination, 572.
Treason, 601.
WOODBURN, PROFESSOR.
Fundamental rights of people in territories, 330.
WORDS AND PHRASES,
Administration, 12.
Aliens, 385, 480n.




INDEX


793


WORDS AND PHRASES-continued
Appropriation, 663.
Bill of attainder, 585.
Citizen, 385, 388.
Colony, 378.
Common law, 698, 704.
Compensation, 527.
Cruel and unusual punishment, 590.
Custom, 710.
Dependency, 378, 380.
Derecho comun, 704.
Due process of law, 559, 615.
Eminent domain, 523, 524.
Equal protection of the laws, 618.
Ex post facto law, 581.
Extradition, 471n.
Filipino, 6n.
Foreign, company, association or corporation, 470.
General principles of law, 704.
General welfare, 530.
Government, 10, 14.
Government of laws and not of men, 432
Government of the Philippine Islands, 1.
Just compensation, 527.
Liberty, 609.
Life, liberty or property, 607.
Market value, 529.
Moro, 6n.
Municipal law, 674.
Nation, 11.
Nationals, 390.
Organic law, 395.
Peonage, 625.
Person, 607.
Placed in jeopardy, 568
Police power, 531.
Political law, 674.
Possession, 378.
Primogeniture, 660.
Public officer, 460.
Public purposes, 514.
Public trial, 553.
Public uses, 527.
Republic, 15.




794                        INDEX
WORDS AND PHRASES-continued
Search warrant, 599.
Servitude, 625.
Slavery, 623, 625.
Sovereignty, 372.
Speedy trial, 553.
State, 9.
Taxes, 510.
Treason, 600.
United States, 381.
WRIT OF HABEAS CORPUS. See HABEAS CORPUS.




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