[Consti Law 2] 95- Rubi vs Provincial Board of Mindoro.doc

8/14/2019 [Consti Law 2] 95- Rubi vs Provincial Board of Mindoro.doc

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[ G.R. No. 14078, March 07, 1919 ]

RUBI ET AL. (MANGUIANES), PLAINTIS, !S. T"E PR#!IN$IAL

B#AR% #P MIN%#R#, %EEN%ANT.

% E $ I S I # N

MAL$#LM, &.'

In one of the cases which denote a landmark in American Constitutional

History (Worcester vs. Georgia [1!"#$ % &et.$ '1'$ Chief )ustice *arshall$

the first luminary of American +uris,rudence$ -egan his o,inion (relating to

the status of an Indian with words which$ with a slight change in

,hraseology$ can -e made to introduce the ,resent o,inion/his cause$ in

every ,oint of view in which it can -e ,laced$ is of the dee,est interest.

/he legislative ,ower of a state$ the controlling ,ower of the constitution

and laws$ the rights$ if they have any$ the ,olitical e0istence of a ,eo,le$

the ,ersonal li-erty of a citien$ are all involved in the su-+ect now to -e

considered.

/o imitate still further the o,inion of the Chief )ustice$ we2 ado,t his outline

and ,roceed first$ to introduce the facts and the issues$ ne0t to give a

history of the .socalled 3non4Christians$3 ne0t to com,are the status of the

3non4Christi5ns3 with that of the American Indians$ and$ lastly$ to resolve

the constitutional 6uestions ,resented.

I. INTR#%U$TI#N.

/his is an a,,lication for ha-eas cor,us in favor of 7u-i and other

*anguianes of the &rovince of *indoro. It is alleged that the *anguianes

are -eing illegally de,rived of their li-erty -y the ,rovincial officials of that

,rovince. 7u-i and his com,anions are said to -e held on the reservation

esta-lished at /ig-ao$ *indoro$ against their will$ and one 8a-alos is said

to -e held under the custody of the ,rovincial sheriff in the ,rison at

Cala,an for having run away from the reservation.

/he return of the 9olicitor4General alleges:

31. /hat on ;e-ruary 1$ 1o. "' which is as follows:

3 2/he ,rovincial governor$ Hon. )uan *orente$ +r.$ ,resented the following

resolution:

3 2Whereas several attem,ts and schemes have -een made for the

advancement of the non4Christian ,eo,le of *inr doro$ which were all a

failure$

3 2Whereas it has -een found out and ,roved that unless some other

measure is taken for the *angyan work of this ,rovince$ no successful

result will -e o-tained toward educating these ,eo,le$

3 2Whereas it is deemed necessary to o-lige them to live in one ,lace in

order to make a ,ermanent settlement$

3 2Whereas the ,rovincial governor of any ,rovince in Which non4Christian

inha-itants are found is authoried$ when such a course is deemed

necessary in the interest of law and order$ to direct such inha-itants to

take u, their ha-itation on sites on unoccu,ied ,u-lic lands to -e selected

-y him and a,,roved -y the ,rovincial -oard$

3 2Whereas the ,rovincial governor is of the o,inion that the sitio of /ig-ao

on ?ake >au+an is a ,lace most convenient for the *angyanes to live on$

>ow$ therefore -e it

3 2Resolved,/hat under section "@== of the Administrative Code$ @@

hectares of ,u-lic land in the sitio of /ig-ao on >au+an ?ake -e selected as

a site for the ,ermanent settlement of *angyanes in *indoro su-+ect to

the a,,roval of the Honora-le 9ecretary of the Interior$ and

3 2Resolved further,/hat *angyans may only solicit homesteads on thisreservation ,roviding that said homestead a,,lications are ,reviously


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recommended -y the ,rdvincial governor.2

3". /hat said resolution >o. "' (series 1o. "'$ current series$ has

selected a site in the sitio of /ig-ao on >au+an ?ake for the ,ermanent

settlement of *angyanes in *indoro.

3 2Whereas said resolution has -een duly a,,roved -y the Honora-le$ the

9ecretary of the Interior$ on ;e-ruary "1$ 1ow$ therefore$ I$ )uan *orente$ +r.$ ,rovincial governor of *indoro$

,ursuant to the ,rovisions of section "1' of the revised Administrative

Code$ do here-y direct that all the *angyans in the vicinities of the

townshi,s of >au+an and &ola and the *angyans east of the Baco 7iver

including those in the districts of 8ulangan and 7u-i2s ,lace in Cala,an$ to

take u, their ha-itation on the site of /ig-ao$ >au+an ?ake$ not later than

8ecem-er !1$ 1au+an$ selected -y the

,rovincial governor and a,,roved -y the ,rovincial -oard /he action was

taken in accordance with section "1' of the Administrative Code of 1


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nota-ly of Act >o. '=$ s,ecifically relating to the *anguianes section %o. !=.

9ection "1' and its antecedent laws make use of the term 3non4

Christians.3 /his word$ as will later -e disclosed$ is also found in varying

forms in other laws of the &hili,,ine Islands. In order to ,ut the ,hrase in

its ,ro,er category$ and in order to understand the ,olicy of theGovernment of the &hili,,ine Islands with reference to the uncivilied

elements of .the Islands$ it is well first of all to set down a skeleton history

of the attitude assumed -y the authorities towards these 3non4Christians$3

with ,articular regard for the legislation on the su-+ect.

II. "*or+.

A. BE#RE A$UISITI#N # T"E P"ILIPPINES B- T"E UNITE%

STATES.

/he most im,ortant of the laws of the Indies having reference to the

su-+ect at hand are com,iled in Book DI$ /itle III$ in the following language:

LA/ I.

3/he Em,eror Charles and the &rince$ the governor$ at Cigales$ on *arch

"1$ 21''1. &hili, II at /oledo$ on ;e-ruary 18IF92 BE 7E8CE8 I>/F 2&FB?ACIF>E92 (CF**>I/IE9 .

3In order that the indios may -e instructed in the 9acred Catholic ;aith and

the.evangelical law$ and in order that they may forget the -lunders of their

ancient rites and ceremonies to the end that they may live in harmony and

in a civilied manner$ it has always -een endeavored$ with great care and

s,ecial attention$ to use all the means most convenient to the attainment

of these ,ur,oses. /o carry out this work with success$ our Council of the

Indies and other religious ,ersons met at various times the ,relates of

>ew 9,ain assem-led -y order of Em,eror Charles D of glorious memory in

the year one thousand five hundred and forty4si0all of which meetings

were actuated with a desire to serve God and our ingdom. At these

meetings it was resolved that indios -e made to live in communities$ and

not to live in ,laces divided and se,arated from one another -y sierras and

mountains$ wherein they are de,rived of all s,iritual and tem,oral -enefits

and wherein they can not ,rofit from the aid of our ministers and from that

which gives rise to those human necessities which men are o-liged to giveone another. Having realied the convenience of this resolution$ our kings$

our ,redecessors$ -y different orders$ have entrusted and ordered the

viceroys$ ,residents$ and governors to e0ecute with great care and

moderation the concentration of the indios into reducciones and to deal

with their doctrine with such for-earance and gentleness$ without causing

inconveniences$ so that those who would not ,resently settle and who

would see the good treatment and the ,rotection of those already in

settlements would$ of their own accord$ ,resent themselves$ and it is

ordained that they -e not re6uired to ,ay ta0es more than what is ordered.

Because the a-ove has -een e0ecuted in the greater ,art of our Indies$ we

here-y order and decree that the same -e com,lied with in all the

remaining ,arts of the Indies$ and the encomenderos shall entreat

com,liance thereof in the manner and form ,rescri-ed -y the laws of this

title.3

LA/ !III.

3&hili, II at the &ardo$ on 8ecem-er 1$ 1'=!. &hili, III at *adrid$ Fcto-er

1@$ 1%1.

T"AT T"E RE%U$$I#NES BE MA%E IN A$$#R%AN$E /IT" T"E

$#N%ITI#NS #P T"IS LA/.

3/he ,laces wherein the ,ue-los and reducciones shall -e formed should

have the facilities of waters$ lands$ and mountains$ ingress and egress$

hus-andry and a ,assageway of one league long$ wherein the indios can


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have their live stock that they may not -e mi0ed with those of the

9,aniards

LA/ I.

3&hili, II at /oledo$ on ;e-ruary 1ovem-er "'$ 1'=. At /omar$

on *ay $ 1'1. At *adrid$ on )anuary 1@$ 1'


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commission of the acts a-ove4mentioned which should not -e tolerated in

the towns$ and that the viceroys$ ,residents$ governors$ and courts take

great care in e0ecuting the law within their ,owers and avail themselves of

the coo,eration of the ministers who are truly honest. As regards the

mestios and Indian and Chinese half4-reeds (am-aigos$ who are

children of indias and -orn among them$ and who are to inherit their

houses and haciendas$ they shall not -e affected -y this law$ it a,,earingto -e a harsh thing to se,arate them from their ,arents.3 (?aw of the

Indies$ vol. "$ ,,. ""$ ""either have the ,unishments im,osed

-een sufficient in certain cases and in those which have not -een guarded

against$ thus giving way for the ma+ority of these races to ,ersist in their

mode of living and customs of isolation.

3As it is im,ossi-le to consent to the continuation of such a lamenta-le

state of things$ taking into account the ,restige which the countrydemands and the inevita-le duty which every government has in enforcing

res,ect and o-edience to the national laws on the ,art of all who reside

within the territory under its control$ I have ,roceeded in the ,remises -y

giving the most careful study of this serious 6uestion which involves

im,ortant interests for civiliation$ from the moral and material as well as

the ,olitical stand,oints. After hearing the illustrious o,inions of all the

local authorities$ ecclesiastics$ and missionaries of the ,rovinces of

>orthern ?uon$ and also after finding the unanimous conformity of the

meeting held with the Arch-isho, of *anila$ the Bisho,s of )aro and Ce-u$

and the ,rovincial ,relates of the Frders of the 8ominicans$ Agustinians$

7ecoletos$ ;ranciscans$ and )esuits as also of the meeting of the Council of

Authorities$ held for the o-+ect so indicated$ I have arrived at an intimate

conviction of the inevita-le necessity of ,roceeding in a ,ractical manner

for the su-mission of the said ,agan and isolated races$ as well as of the

manner and the only form of accom,lishing such a task.

3;or the reasons a-ove stated and for the ,ur,ose of carrying out these

o-+ects$ I here-y ,romulgate the following :

%E$REE.

31. All the indian inha-itants (indios of the 2Island of ?uon are$ from this

date$ to -e governed -y the common law$ save those e0ce,tions

,rescri-ed in this decree which are -ased u,on the differences of

instruction$ of the customs$ and of the necessities of the different ,agan

races which occu,y a ,art of its territory.

3". /he diverse rules which should -e ,romulgated for each of these raceswhich may -e divided into three classes: one$ which com,rises those


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which live isolated and roaming a-out without forming a town nor a home

another$ made u, of those su-dued ,agans who have not as yet entered

com,letely the social life and the third$ of those mountain and re-ellious

,agansshall -e ,u-lished in their res,ective dialects$ and the officials$

,riests$ and missionaries of the ,rovinces wherein they are found are

here-y entrusted in the work of having these races learn these rules.

/hese rules shall have e0ecutive character$ -eginning with the first day ofne0t A,ril$ and$ as to their com,liance$ they must -e o-served in the

manner ,rescri-ed -elow.

3!. /he ,rovincial authorities in con+unction with the ,riests shall ,roceed$

from now on$ with all the means which their eal may suggest to them$ to

the taking of the census of the inha-itants of the towns or settlements

already su-dued$ and shall ado,t the necessary regulations for the

a,,ointment of local authorities$ if there -e none as yet for the

construction of courts and schools$ and for the o,ening or fi0ing u, of

means of communication$ endeavoring$ as regards the administrative

organiation of the said towns or settlements$ that this -e finished -efore

the first day of ne0t )uly$ so that at the -eginning of the fiscal year they

shall have the same rights and o-ligations which affect the remaining

towns of the archi,elago$ with the only e0ce,tion that in the first two years

they shall not -e o-liged to render ,ersonal services other than those

,reviously indicated.

3. 9o long as these su-dued towns or settlements are located in fertile

lands a,,ro,riate for cultivation$ the inha-itants thereof shall not -e

o-liged to move their dwelling4houses and only in case of a-solute

necessity shall a new residence -e fi0ed for them$ choosing for this

,ur,ose the ,lace most convenient for them and which ,re+udices the least

their interests and$ in either of these cases$ an effort must -e made to

esta-lish their homes within the reach of the sound of the -ell.

3'. ;or the ,rotection and defense of these new towns$ there shall -e

esta-lished an armed force com,osed ,recisely of native Christians$ the

organiation and service of which shall -e determined in a regulation-ased u,on that of the a-olished Tercios de Policia(division of the uardia

Civil.

3%. /he authorities shall see to it that the inha-itants of the new towns

understand all the rights and duties affecting them and the li-erty which

they have as to where and how they shall till their lands and sell the

,roducts thereof$ with the only e0ce,tion of the to-acco which shall -e

-ought -y the !aciendaat the same ,rice and conditions allowed other,roducers$ and with the ,rohi-ition against these new towns as well as the

others from engaging in commerce or any other transaction with the

re-ellious indios,the violation of which shall -e ,unished with de,ortation.

3=. In order to ,ro,erly carry out this e0,ress ,rohi-ition$ the limits of the

territory of the re-ellious indios shall -e fi0ed and whoever should go

-eyond the said limits shall -e detained and assigned governmentally

wherever convenient.

3. ;or the ,ur,ose of assisting in the conversion of the ,agans into the

fraternity of the Catholic Church$ all who have settled and who ,rofess our

sacred religion shall -y this fact alone -e e0em,t for eight years from

rendering ,ersonal la-or.

3


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31@. /he races indicated in the ,receding article$ who voluntarily admit the

advantages offered$ shall$ in return$ have the o-ligation of constituting

their new towns$ of constructing their town hall$ schools$ and country roads

which ,lace them in communication with one another and with the

Christians ,rovided$ that the location of these towns -e distant from their

actual residences$ when the latter do not have the good conditions oflocation and cultivation$ and ,rovided further that the ,utting of families in

a ,lace so selected -y them -e authoried in the towns already

constituted.

311. /he armed force shall ,roceed to the ,rosecution and ,unishment of

the tri-es$ that$ disregarding the ,eace$ ,rotection$ and advantages

offered them$ continue in their re-ellious attitude on the first of ne0t A,ril$

committing from now on the crimes and ve0ations against the Christian

towns and for this ,ur,ose$ the Ca,tain General2s Fffice shall ,roceed with

the organiation of the divisions of the Army which$ in con+unction with the

rural guards (cuadrilleros$ shall have to enter the. territory of such tri-es.

Fn the e0,iration of the term$ they shall destroy their dwelling4houses$

la-ors$ and im,lements$ and confiscate their ,roducts and cattle. 9uch a

,unishment shall necessarily -e re,eated twice a year$ and for this

,ur,ose the military head6uarters shall immediately order a detachment of

the military staff to study the ones where such o,erations shall take ,lace

and everything conducive to the successful accom,lishment of the same.

31". /he chiefs of ,rovinces$ ,riests$ and missionaries$ local authorities$

and other su-ordinates to my authority$ civil as well as military authorities$

shall give the most effective aid and coo,eration to the said forces in all

that is within the attri-utes and the sco,e of the authority of each.

31!. With res,ect to the reduction of the ,agan races found in some of the

,rovinces in the southern ,art of the Archi,elago$ which I intend to visit$

the ,receding ,rovisions shall conveniently -e a,,lied to them.

31. /here shall -e created$ under my ,residency as Governor4General$Dice47oyal &atron$ a council or ,ermanent commission which shall attend

to and decide all the 6uestions relative to the a,,lication of the foregoing

regulations that may -e -rought to it for consultation -y the chiefs of

,rovinces and ,riests and missionaries.

31'. /he secondary ,rovisions which may -e necessary$ as a com,lement

to the foregoing$ in -ringing a-out due com,liance with this decree$ shall

-e ,romulgated -y the res,ective official centers within their res,ective+urisdictions.3 (aceta de "anila,>o. 1' (#iccionario de la

$dministration,vol. =$ ,,. 1"41!.

B. ATER A$UISITI#N # T"E P"ILIPPINES B- T"E UNITE%

STATES.

Ever since the ac6uisition of the &hili,,ine Islands -y the nited 9tates$ the

6uestion as to the -est method for dealing with the ,rimitive inha-itants

has -een a ,er,le0ing one.

1. %rganic la&.

/he first order of an organic character after the inauguration of the

American Government in the &hili,,ines$ was &resident *cinley2s

Instructions to the Commission of A,ril =$ 1


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&hili,,ine Bill was to ,rovide for a legislative -ody and$ with this end in

view$ to name the ,rere6uisites for the organiation of the &hili,,ine

Assem-ly. /he &hili,,ine ?egislature$ com,osed of the &hili,,ine

Commission and the &hili,,ine Assem-ly$ was to have +urisdiction over the

Christian ,ortion of the Islands. /he &hili,,ine Commission was to retain

e0clusive +urisdiction of that ,art of said Islands inha-ited -y *oros or

other non4Christian tri-es.

/he latest Act of Congress$ nearest to a Constitution for the &hili,,ines$ is

the Act of Congress of August "ueva Dicaya$ Acts >os.

11$ ""$ '$ '@@$ '=$ '$ 'o. '=.A> AC/ &7FDI8I>G ;F7 /HE E9/AB?I9H*E>/ F; ?FCA? CIDI?

GFDE7>*E>/9 ;F7 /HE *A>GIA>E9 I> /HE &7FDI>CE F; *I>8F7F.

3y authority of the nited 'tates, be it enacted by the Philippine

Commission, thid

39ection 1. Whereas the *anguianes of the &rovince of *indoro have$ not

,rogressed sufficiently in civiliation to make it ,ractica-le to -ring them

under any form of munici,al government$ the ,rovincial governor is

authoried$ su-+ect to the a,,roval of the 9ecretary of the Interior$ in

dealing with these *anguianes to a,,oint officers from among them$ to fi0

their designations and -adges of office$ and to ,rescri-e their ,owers and

duties: &rovided$ /hat the ,owers and duties thus ,rescri-ed shall not -e in

e0cess of those conferred u,on townshi, officers -y Act >um-ered /hree

hundred and eighty4seven entitled 2An Act ,roviding for the esta-lishment

of local civil governments in the townshi,s and settlements of >ueva

Dicaya.2

39ec. ". 9u-+ect to the a,,roval of the 9ecretary of the Interior$ the

,rovincial governor is further authoried$ when he deems$ such a coursenecessary in the interest of law and order$ to direct such *anguianes to


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take u, their ha-itation on sites on unoccu,ied ,u-lic lands to -e selected

-y him and a,,roved -y the 3,rovincial -oard. *anguianes who refuse to

com,ly with such directions shall u,on conviction -e im,risoned for a

,eriod not e0ceeding si0ty days.

39ec. !. /he constant aim of the governor shall -e to aid the *anguianes of

his ,rovince to ac6uire the knowledge and e0,erience necessary forsuccessful local ,o,ular government$ and his su,ervision and control over

them shall -e e0ercised to this end$ and to the end that law and order and

individual freedom shall -e maintained.

39ec. . When in the o,inion of the ,rovincial -oard of *indoro any

settlement of *anguianes has advanced sufficiently to make such a course

,ractica-le$ it may -e organied under the. ,rovisions of sections one to

si0ty4seven$ inclusive$ of Act >um-ered three hundred and eighty4seven$

as a townshi,$ and the geogra,hical limits of such townshi, shall -e fi0ed

-y the ,rovincial -oard.

39ec. '. /he ,u-lic good re6uiring the s,eedy enactment of this -ill$ the

,assage of the same is here-y e0,edited in accordance with section two of

2An Act ,rescri-ing the order of ,rocedure -y the Commission in the

enactment of laws$2 ,assed 9e,tem-er twenty4si0th$ nineteen hundred.

39ec. %. /his Act shall take effect on its ,assage.

3Enacted$ 8ecem-er $ 1


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3&hili,,ine /ri-es and ?anguages$3 and 8r. >. *. 9alee-y$ 3/he Frigin of

*alayan ;ili,inos.3 (9ee Blair 5 7o-ertson$ 3/he &hili,,ine Islands$3 1

1


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tribes,cele-rated within that ,rovince without com,liance with the

re6uisites ,rescri-ed -y General Frders >o. %. We hold also that the

fact that the accused is shown to -e a member of an uncivilized tribe, of a

lo& order of intelligence, uncultured and uneducated,should -e taken into

consideration as a second marked e0tenuating circumstance.3

Ff much more moment is the uniform construction of e0ecutive officials

who have -een called u,on to inter,ret and enforce the law. /he officialwho$ as a mem-er of the &hili,,ine Commission$ drafted much of the

legislation relating to the so4called non4Christians and who had these

,eo,le under his authority$ was the former 9ecretary of the Interior. nder

date of )une !@$ 1


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*ohammedans$ Confucians$ Buddists$ etc.$ are su-+ect to said ta0 so long

as they live in cities or towns$ or in the country in a civilied condition. In

other words$ it is not so much a matter of a man2s form of religious worshi,

or ,rofession that decides whether or not he is su-+ect to the cedula ta0 it

is more de,endent on whether he is living in a civilied manner or is

associated with the mountain tri-es$ either as a mem-er thereof or as a

recruit. 9o far$ this 6uestion has not come u, as to whether a Christian$maintaining his religious -elief$ -ut throwing his lot and living with a non4

Christian tri-e$ would or would not -e su-+ect to the cedula ta0. Fn one

occasion a ,rominent He-rew of *anila claimed to this office that he was

e0em,t from the cedula ta0$ inasmuch as he was not a Christian. /his

Fffice$ however$ continued to collect cedula ta0es from all of the )ews$ East

Indians$: Ara-s$ Chinamen$ etc.$ residing in *anila. Muite a large ,ro,ortion

of the cedula ta0es ,aid in this city are ,aid -y men -elonging to the

nationalities mentioned. Chinamen$ Ara-s and others are 6uite widely

scattered throughout the Islands$ and a condition similar to that which

e0ist in *anila also e0ists in most of the large ,rovincial towns. Cedula

ta0es are therefore -eing collected -y this Fffice in4all ,arts of these

Islands on the -road ground that civilied ,eo,le are su-+ect to such ta0es$

and. non4civilied ,eo,le ,reserving their tri-al relations are not su-+ect

thereto.

(9gd. 3)>F. 9. HF78$

3Collector of /nternal Revenue.3

Fn 9e,tem-er 1=$ 1o. !"=$ a,,roved -y the 9ecretary of ;inance and )ustice$ to

all ,rovincial treasurers. /his letter in ,art reads:

3In view of the many 6uestions that have -een raised -y ,rovincial

treasurers regarding cedula ta0es due from mem-ers of non4Christian

tri-es when they come in from the hills for the ,ur,ose of settling down

and -ecoming $mem-ers of the -ody ,olitic of the &hili,,ine Islands$ the

following clarification of the laws governing such 6uestions and digest of

rulings thereunder is here-y ,u-lished for the information of all concerned:

3>on4Christian inha-itants of the &hili,,ine Islands are so classed$ not -yreason of the fact that they do not ,rofess Christianity$ -ut -ecause of

their uncivilied mode of life and low state of develo,ment. All inha-itants

of the &hili,,ine Islands classed as mem-ers of non4Christian tri-es may

-e divided into three classes in so far as the cedula ta0 law is concerned.

3Whenever any mem-er of a non4Christian tri-e leaves his wild and

uncivilied mode of life$ severs whatever tri-al relations he may have hadand attaches himself to some civilied community$ -ecoming a mem-er of

the -ody ,olitic$ he there-y makes himself su-+ect to ,recisely the same

law that governs the other mem-ers of that community and from and after

the date when he so attaches himself to the community the same cedula

and other ta0es are due from him as from other mem-ers thereof. If he

comes in after the e0,iration of the delin6uency ,eriod the same rule

should a,,ly to him as to ,ersons arriving from foreign countries or

reaching the age of eighteen su-se6uent to the e0,iration of such ,eriod$

and a regular class A$ 8$ ;$ or H cedula$ as the case may -e$ should -e

furnished him without ,enalty a$nd without re6uiring him to ,ay the ta0 for

former years.

3In conclusion$ it should -e -orne in mind that the ,rime factor in

determining whether or not a man is su-+ect to the regular cedula ta0 is

not the circumstance that he does or does not ,rofess Christianity$ nor

even his maintenance of or failure to maintain tri-al relations with some of

the well known wild tri-es$ -ut his mode of life$ degree of advancement in

civiliation and connection or lack of connection with some civilied

community. ;or this reason so called 27emontados2 and 2*ontescos2 will -e

classed -y this Noffice as mem-ers of non4Christian tri-es in so far as the

a,,lication of the Internal 7evenue ?aw is concerned$ since$ ev.en though

they -elong to no well recognied tri-e$ their mode of life$ degree of

advancement and so forth are ,ractically the same as those of the Igorrots

and mem-ers of other recognied non4Christian tri-es.

3Dery res,ectfully$

(9gd. 3E??I9 C7F*WE??$3Collector of /nternal Revenue,


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3A,,roved:

(9gd. 3G7EGF7IF A7A>E/A$

3'ecretary of 3inance and 4ustice.3

/he two circulars a-ove 6uoted have since -een re,ealed -y Bureau of

Internal 7evenue 7egulations >o. 1$ ,romulgated -y Denancio Conce,cion$

Acting Collector of Internal 7evenue$ and a,,roved on A,ril 1%$ 1


14/35

/he so4called non4Christians are in various stages a,,roaching civiliation.

/he &hili,,ine Census of 1egrito

-lood and have not advanced -eyond the >egritos in civiliation. /hey are

a ,eaceful$ timid$ ,rimitive$ semi4nomadic ,eo,le. /hey num-er

a,,ro0imately 1'$@@@. /he *anguianes have shown no desire for

community life$ and$ as indicated in the ,ream-le to Act >o. '=$ have not

,rogressed sufficiently in civiliation to make it ,ractica-le to -ring them

under a2ny form of munici,al government. (9ee Census of the &hili,,ine

Islands [1


15/35

,art of it$ or the 9tate or the nited 9tates wished to ,urchase it$ a treaty

with the tri-e was the only mode in which this could -e done. /he nited

9tates recognied no right in ,rivate ,ersons$ or in other nations$ to make

such a ,urchase -y treaty or otherwise. With the Indians themselves these

relations are e6ually difficult to define. /hey were$ and always have -een$

regarded as having a semi4inde,endent ,osition when they ,reserved their

tri-al relations not as 9tates$ not as nations$ not as ,ossessed of the full

attri-utes of sovereignty$ -ut as a se,arate ,eo,le$ with the ,ower of

regulating their internal and social relations$ and thus far not -rought

under the laws of the nion or of the 9tate within whose limits they

resided.3

/he o,inion then continues:

3It seems to us that this (effect of the law is within the com,etency of

Congress. /hese Indian tri-es are the wards of the nation. /hey are

communities dependenton the nited 9tates. 8e,endent largely for their

daily food. 8e,endent for their ,olitical rights. /hey owe no allegiance to

the 9tates$ and receive from them no ,rotection. Because of the local ill

feeling$ the ,eo,le of the 9tates where they are found are often their

deadliest enemies. ;rom their very weakness and hel,lessness$ so largely

due to the course of dealing of the ;ederal Government with them and the

treaties in which it has -een ,romised$ there arise the duty of ,rotection$

and with it the ,ower. /his has always -een recognied -y the E0ecutive

and -y Congress$ and -y this court$ whenever the 6uestion has arisen.

/he ,ower of the General Government over these remnants of a race once

,owerful$ now weak and diminished in num-ers$ is necessary to their

,rotection$ as well as to the safety of those among whom they dwell. It

must e0ist in that government$ -ecause it never has e0isted anywhere

else$ -ecause the theater of its e0ercise is within the geogra,hical limits of

the nited 9tates$ -ecause it has never -een denied$ and -ecause it alone

can enforce its laws on all the tri-es.3

In the later case of nited 9tates vs. 9andoval ([1ew

*e0ico to statehood. /he court looked to the re,orts of the differentsu,erintendents charged with guarding their interests and found that these

Indians are de,endent u,on the fostering care and ,rotection of the

government 3like .reservation Indians in general.3 Continuing$ the court

said 3that during the 9,anish dominion$ the Indians of the ,ue-los were

treated as wards re6uiring s,ecial ,rotection$ were su-+ected to restraints

and official su,ervision in the alienation of their ,ro,erty.3 And finally$ we

note the following: 3>ot only does the Constitution e0,ressly authorie

Congress to regulate commerce with the Indian tri-es$ -ut longcontinued

legislative and e0ecutive usage and an un-roken current of +udicial

decisions have attri-uted to the nited 9tates as a su,erior and civilied

nation the ,ower and the duty of e0ercising a fostering care and ,rotection

over all de,endent Indian communities within its -orders$ whether within

its original territory or territory su-se6uently ac6uired$ and whether within

or without the limits of a state.3

With reference to laws affecting the Indians$ it has -een held that it is not

within the ,ower of the courts to overrule the +udgment of Congress. ;or

very good reason$ the su-+ect has always -een deemed ,olitical in nature$

not su-+ect to the +urisdiction of the +udicial de,artment of the

government. (*atter of Heff [1


16/35

literally$ might result in the issuance of ha-eas cor,us$ is that of nited

9tates vs. Crook ([1=o. 1


17/35

Indians have -een taken from different ,arts of the country and ,laced on

these reservations$ without any ,revious consultation as to their own

wishes$ and that$ when once so located$ they have -een made to remain

on the reservation for their own good and for the general good of the

country. If any lesson can -e drawn from the Indian ,olicy of the nited

9tates$ it is that the determination of this ,olicy is for the legislative and

e0ecutive -ranches of the government and that when once so decided

u,on$ the courts should not interfere to u,set a carefully ,lanned

governmental system. &erha,s$ +ust as many forceful reasons e0ist for the

segregation of the *anguianes in *indoro as e0isted for the segregation of

the different Indian tri-es in the nited 9tates.

I!. $#NSTITUTI#NAL UESTI#NS.

A. %ELEGATI#N #P LEGISLATI!E P#/ER.

/he first constitutional o-+ection which confronts us is that the ?egislature

could not delegate this ,ower to ,rovincial authorities. In so attem,ting$ it

is contended$ the &hili,,ine ?egislature has a-dicated its authority and

avoided its full res,onsi-ility.

hat the ma0im of Constitutional ?aw for-idding the delegation of legislative

,ower should -e ealously ,rotected$ we agree. An understanding of the

rule will$ however$ disclose that it has not -een violated in this instance.

/he rule has nowhere -een -etter stated than in the early Fhio casedecided -y )udge 7anney$ and since followed in a multitude of cases$

namely: 3/he true distinction therefore is -etween the delegation of ,ower

to make the law$ which necessarily involves a discretion as to what it shall

-e$ and conferring an authority or 3discretion as to its e0ecution$ to -e

e0ercised under and in ,ursuance of the law. /he first cannot -e done to

the latter no valid o-+ection can -e made.3 (Cincinnati$ W. 5 K. 7. Co. vs.

Comm2rs. Clinton County [1'"#$ 1 Fhio 9t.$ . 8iscretion$ as held -y

Chief )ustice *arshall in Wayman vs. 9outhard ([1"'#$ 1@ Wheat.$ 1 may

-e committed -y the ?egislature to an e0ecutive de,artment or official.

/he ?egislature may make decisions of e0ecutive de,artments or

su-ordinate officials thereof$ to whom it has committed the e0ecution of

certain acts$ final on 6uestions of fact. (. 9. vs. inkead [1


18/35

,rovincial -oard.

Who -ut the ,rovincial governor and the ,rovincial -oard$ as the official

re,resentatives of the ,rovince$ are -etter 6ualified to +udge 3when such a

course is deemed necessary in the interest of law and orderO3 As officials

charged with the administration of the ,rovince and the ,rotection of its

inha-itants$ who -ut they are -etter fitted to select sites which have the

conditions most favora-le for im,roving the ,eo,le who have the

misfortune of -eing in a -ackward stateO 9ection "1' of the

Administrative Code of 1


19/35

3Even li-erty itself$ the greatest of all rights$ is not unrestricted license to

act according to one2s own will. It is only freedom from restraint under

conditions essential to the e6ual en+oyment of the same right -y others.3

(;ield$ ).$ in Crowley vs. Christensen [1


20/35

forensic literature$ said that the meaning of 3due ,rocess of law3 is$ that

3every citien shall hold his life$ li-erty$ ,ro,erty$ and immunities under the

,rotection of the general rules which govern society.3 /o constitute 3due

,rocess of law$3 as has -een often held$ a +udicial ,roceeding is not always

necessary. In some instances$ even R hearing and notice are not re6uisite$

a rule which is es,ecially true where much must -e left to the discretion of

the administrative officers in a,,lying a law to ,articular cases. (9ee

*cGehee$ 8ue &rocess of ?aw$ ,. !=1. >either is due ,rocess a stationary

and -lind sentinel of li-erty. 3Any legal ,roceeding enforced -y ,u-lic

authority$ whether sanctioned -y age and custom$ or newly devised in the

discretion of the legislative ,ower$ in furtherance of the ,u-lic good$ which

regards and ,reserves these ,rinci,les of li-erty and +ustice$ must -e held

to -e due ,rocess of law.3 (Hurtado vs. California [1!#$ 11@ . 9.$ '1%.

38ue ,rocess of law3 means sim,ly 3first$ that there shall -e a law

,rescri-ed in harmony with the general ,owers of the legislative

de,artment of the Government second$ that this law shall -e reasona-le

in its o,eration third$ that it shall -e enforced according to the regular

methods of ,rocedure ,rescri-ed and fourth$ that it shall -e a,,lica-le

alike to all the citiens of the state or to all of a class.3 (. 9. vs. ?ing 9u

;an [1ot attem,ting to ,hrase a definition of ,olice ,ower$ all that it is

necessary to note at this moment is the farreaching sco,e of the ,ower$

that it has -ecome almost im,ossi-le to limit its swee,$ and that among its

,ur,oses is the ,ower to ,rescri-e regulations to ,romote the health$

,eace$ morals$ education$ and good order of the ,eo,le$ and to legislate so

as to increase the industries of the 9tate$ develo, its resources and add toits wealth and ,ros,erity. (9ee Bar-ier vs. Connolly [1#$ 11! . 9.$ "=.

What we are most interested in is the right of the government to restrain

li-erty -y the e0ercise of the ,olice ,ower.

3/he ,olice ,ower of the 9tate$3 one court has said$ 3is a ,ower

coe0tensive with self4,rotection$ and is not ina,tly termed the 2law of

overruling necessity.2 It may -e said to -e that inherent and ,lenary ,ower

in the 9tate which ena-les it to ,rohi-it all things hurtful to the comfort$

safety and welfare of society.3 (?ake Diew vs. 7ose Hill Cemetery Co.

[1=!#$ =@ 111.$ 1


21/35

+udiciary rarely attem,ts to dam the onrushing ,ower of legislative

discretion$ ,rovided the ,ur,oses of the law do not go -eyond the great

,rinci,les that mean security for the ,u-lic welfare or2 do not ar-itrarily

interfere with the right of the individual.

/he Government of the &hili,,ine Islands has -oth on reason and authority

the right to e0ercise the sovereign ,olice ,ower in the ,romotion of the

general welfare and the ,u-lic interest. 3/here can -e no dou-t that the

e0ercise of the ,olice ,ower of the &hili,,ine Government -elongs to the

?egislature and that this ,ower is limited only -y the Acts of Congress and

those fundamental ,rinci,les which lie at the foundation of all re,u-lican

forms of government.3 (Churchill and /ait vs. 7afferty [1


22/35

3(c /he e0tension of ,u-lic works throughout the *ohammedan regions to

facilitate their develo,ment and the e0tension of government control.

3(d Construction of roads and trails -etween one ,lace and another

among non4Christians$ to ,romote social and commercial intercourse and

maintain amica-le relations among them and with the Christian ,eo,le.

3 (e &ursuance of the develo,ment of natural economic resources$

es,ecially agriculture.

3(f /he encouragement of immigration into$ and of the investment of

,rivate ca,ital in$ the fertile regions of *indanao and 9ulu.3

/he 9ecretary adds:

3/o attain the end desired$ work of a civiliing influence have -een

continued among the non4Christian ,eo,le. /hese ,eo,le are -eing taught

and guided to im,rove their living conditions in order that they may fully

a,,reciate the -enefits of civiliation. /hose of them who are still given to

nomadic ha-its are -eing ,ersuaded to a-andon their wild ha-itat and

settle in organied settlements. /hey are -eing made to understand that it

is the ,ur,ose of the Government to organie them ,olitically into fi0ed

and ,ermanent communities$ thus -ringing them under the control of the

Government$ to aid them to live and work$ ,rotect them from involuntary

servitude and a-use$ educate their children$ and show them the

advantages of leading a civilied life with their civilied -rothers. In short$

they are -eing im,ressed with the ,ur,oses and o-+ectives of the

Government of leading them to economic$ social$ and ,olitical e6uality$

and unification with the more highly civilied inha-itants of the counto6y$3

(9ee 7e,ort of the 8e,artment for 1ote Acts >os. ""@$ "@$ ". Act >o.

"%= in reesta-lishing the Bureau of non4Christian /ri-es$ defines the aim

of the Government towards the nonChristian ,eo,le in the followingune6uivocal terms:

3It shall -e the duty of the Bureau of non4Christian /ri-es to continue the

work for advancement and li-erty in favor of the regions inha-ited -y non4

Christian ;ili,inos and foster -y all ade6uate means and in a systematical$

ra,id$ and com,lete manner the moral$ material$ economic$ social$ and

,olitical develo,ment of those regions$ always having in view the aim of

rendering ,ermanent the mutual intelligence -etween$ and com,lete

fusion of$ all the Christian and non4Christian elements ,o,ulating the

,rovinces of the Archi,elago.3 (9ec. !.

*ay the *anguianes not -e considered$ as are the Indians in the nited

9tates$ ,ro,er wards of the ;ili,ino ,eo,leO By the fostering care of a wise

Government$ may not these unfortunates advance in the 3ha-its and arts

of civiliationO3 Would it -e advisa-le for the courts to intrude u,on a ,lan$

carefully formulated$ and a,,arently working out for the ultimate good of

these ,eo,leO

In so far as the *anguianes themselves are concerned$ the ,ur,ose of the

Government is evident. Here$ we have on the Island of *indoro$ the

*anguianes$ leading a nomadic life$ making de,redations on their more

fortunate neigh-ors$ uneducated in the ways of civiliation$ and doing

nothing for the advancement of the &hili,,ine Islands. What the

Government wished to do -y -ringing them into a reservation was to

gather together the children for educational ,ur,oses$ and to im,rove the

health and morals was in fine$ to -egin the ,rocess of civiliation. /his

method was termed in 9,anish times$ 3-ringing under the -ells.3 /he same

idea ada,ted to the e0isting situation$ has -een followed with reference to

the *anguianes and other ,eo,les of the same class$ -ecause it re6uired$

if they are to -e im,roved$ that they -e gathered together. Fn these few

reservations there live under restraint in some cases$ and in other

instances voluntarily$ a few thousands of the uncivilied ,eo,le.

9egregation really constitutes ,rotection for the *anguianes.

/heoretically$ one may assert that all men are created free and e6ual.

&ractically$ we know that the a0iom is not ,recisely accurate. /he

*anguianes$ for instance$ are not free$ as civilied men are free$ and they

are not the e6uals of their more fortunate -rothers. /rue$ indeed$ they arecitiens$ with many -ut not all the rights which citienshi, im,lies. And


23/35

true$ indeed$ they are ;ili,inos. But +ust as surely$ the *anguianes are

citiens of a low degree of intelligence$ and ;ili,inos who are a drag u,on

the ,rogress of the 9tate.

In so far as the relation of the *anguianes to the 9tate is concerned$ the

,ur,oses of the ?egislature in enacting the law$ and of the e0ecutive

-ranch in enforcing it$ are again ,lain. 9ettlers in *indoro must have their

cro,s and ,ersons ,rotected from ,redatory men$ or they will leave the

country. It is no argument to say that such crimes are ,unished -y the

&enal Code$ -ecause these ,enalties are im,osed after commission of the

offense and not -efore. If immigrants are to -e encouraged to develo,

the3resources of the great Island of *indoro$ and its$ as yet$ un,roductive

regions$ the Government must -e in a ,osition to guarantee ,eace and

order.

Waste lands do not ,roduce wealth. Waste ,eo,le do not advance the

interest of the 9tate. Ill iteracy and thriftlessness are not conducive to

homogeneity. /he 9tate to ,rotect itself from destruction must ,rod on the

laggard and the sluggard. /he great law of overwhelming necessity is all

convincing.

/o 6uote again from the instructive memorandum of the 9ecretary of the

Interior:

3?iving a nomadic and a wayfaring life and evading the influence of

civiliation$ they (the *anguianes are engaged in the works of destruction

-urning and destroying the forests and making illegal caingins thereon.

>ot -ringing any -enefit to the 9tate -ut instead in+uring and damaging its

interests$ what will ultimately -ecome of these ,eo,le with the sort of

li-erty they wish to ,reserve and for which they are now fighting in courtO

/hey will ultimately -ecome a heavy -urden to the 9tate and on account of

their ignorance they will commit crimes and make de,redations$ or if not

they will -e su-+ected to involuntary servitude -y those who may want to

a-use them.

3/here is no dou-t in my mind that this ,eo,le has not a right conce,tionof li-erty and does not ,ractise li-erty in a rightful way. /hey understand

li-erty as the right to do anything they willgoing from one ,lace to

another in the mountains$ -urning and destroying forests and making

illegal caingim thereon.

3>ot knowing what true li-erty is and not ,ractising the same rightfully$

how can they allege that they are -eing de,rived thereof without due

,rocess of lawO

3But does the Constitutional guaranty that 2no ,erson shall -e de,rived of

his li-erty without due ,rocess of law2 a,,ly to a class of ,ersons who do

not have a correct idea of what li-erty is and do not ,ractise li-erty in a

rightful wayO

3/o say that it does will mean to sanction and defend an erroneous idea of

such class of ,ersons as to what li-erty is. It will mean$ in the case at -ar$

that the Government should not ado,t any measures looking to the welfare

and advancement of the class of ,ersons in 6uestion. It will mean that this

,eo,le should -e let alone in the mountains and in a ,ermanent state of

savagery without even the remotest ho,e of coming to understand li-erty

in its true and no-le sense.

3In dealing with the -ackward ,o,ulation$ like the *anguianes$ the

Government has -een ,laced in the alternative of either letting them alone

or2guiding them in the ,ath of civiliation. /he latter measure was ado,tedas the one more in accord with humanity and with national conscience.3

3/he national legislation on the su-+ect of non4Christian ,eo,le has tended

more and more towards the education and civiliation of such ,eo,le and

fitting them to -e citiens. /he ,rogress of those ,eo,le under the tutelage

of the Government is indeed encouraging and the signs of the times ,oint

to a day which is not far distant when they will -ecome useful citiens. In

the light of what has already -een accom,lished which has -een winning


24/35

the gratitude of most of the -ackward ,eo,le$ shall we give u, the no-le

work sim,ly -ecause a certain element$ -elieving that their ,ersonal

interests would -e in+ured -y such a measure has come forward and

challenged the authority of the Government to lead this ,eo,le in the ,ath

of civiliation O 9hall we$ after e0,ending sweat$ treasure$ and even -lood

only to redeem this ,eo,le from the claws of ignorance and su,erstition$

now willingly retire -ecause there has -een erroneously invoked in their

favor that Constitutional guaranty that no ,erson shall -e de,rived of his

li-erty without due ,rocess of lawO /o allow them to successfully invoke

that Constitutional guaranty at this time will leave the Government without

recourse to ,ursue the works of civiliing them and making them useful

citiens. /hey will thus -e left in a ,ermanent state of savagery and

-ecome a vulnera-le ,oint of attack -y those who dou-t$ nay challenge$

the a-ility of the nation to deal with our -ackward -rothers.

3/he *anguianes in 6uestion have -een directed to live together at /ig-ao.

/here they are -eing taught and guided to im,rove their living conditions.

/hey are -eing made to understand that the o-+ect of the government is to

organie them ,olitically into fi0ed and ,ermanent4communities. /hey are

-eing aided to live and work. /heir children are -eing educated in a school

es,ecially esta-lished for them. In short$ everything is -eing done for them

in order that their advancement in civiliation and material ,ros,erity may

-e assured. Certainly their living together in /ig-ao does not make them

slaves or ,ut them in a condition com,elled to do services for another.

/hey do riot work for any-ody -ut for themselves. /here is$ therefore$ no

involuntary servitude.

3But they are com,elled to l ive there and ,rohi-ited from emigrating to

some other ,lace under ,enalty of im,risonment. Attention in this

connection is invited to the fact that this ,eo,le$ living a nomadic and

wayfaring life$ do not have ,ermanent individual ,ro,erty. /hey move from

one ,lace to another as the conditions of living warrant$ and the entire

s,ace where they are roving a-out is the ,ro,erty of the nation$ the

greater ,art -eing lands of ,u-lic domain. Wandering from one ,lace to

another on the ,u-lic lands$ why can not the government ado,t a measureto concentrate them in a certain fi0ed ,lace on the ,u-lic lands$ instead of

,ermitting them to roam all over the entire territoryO /his measure is

necessary -oth in the interest of ihe ,u-lic as owner of the lands a-out

which they are roving and for the ,ro,er accom,lishment of the ,ur,oses

and o-+ectives$ of the Government. ;or as ,eo,le accustomed to nomadic

ha-it$ they will always long to return to the mountains and follow a

wayfaring life$ and unless a ,enalty is ,rovided for$ you can not make them

live together and the no-le intention of the Government of organiing

them ,olitically will come to naught.3 y

G. APPLI$ATI#N AN% $#N$LUSI#N.

Fur e0haustive study should have left us in a ,osition to answer s,ecific

o-+ections and to reach a general conclusion.

In the first ,lace$ it is argued that the citien has the right$ generally

s,eaking$ to go whe+e he ,leases. Could he not$ however$ -e ke,t away

from certain localitiesO /o furnish an e0am,le from the Indian legislation.

/he early Act of Congress of 1@" (" . 9. 9tat. at ?.$ ,. 11 ,unished

those intruders who should cross the line into an Indian reservation. /hose

citiens certainly did not ,ossess a-solute freedom of locomotion. Again

the same law ,rovided for the a,,rehension of marauding Indians. Without

any dou-t$ this law and other similar laws were acce,ted and followed time

and again without 6uestion.

It is said that$ if we hold this section to -e constitutional$ we leave this

weak and defenseless ,eo,le confined as in a ,rison at the mercy of

unscru,ulous officials. What$ it is asked$ would -e the remedy of any

o,,ressed *anguianO /he answer would naturally -e that the official into

whose hands are given the enforcement$ of the law would have little or no

motive to o,,ress these ,eo,le on the contrary$ the ,resum,tion would all

-e that they would endeavor to carry out the ,ur,oses of the law

intelligently and ,atriotically. If$ indeed$ they did ill4treat any ,erson thus

confined$ there always e0ists the ,ower of removal in the hands of su,erior

officers$ and the courts are always o,en $ for a redress of grievances.

When$ however$ only the validity of the law is generally challenged and no

,articular case of o,,ression is called to the attention of the courts$ itwould seem that the )udiciary should not unnecessarily ham,er the


25/35

Government in the accom,lishment of its lauda-le ,ur,ose.

/he 6uestion is a-ove all one of sociology. How far$ consistently with

freedom$ may the rights and li-erties of the individual mem-ers of society

-e su-ordinated to the will of the GovernmentO It is a 6uestion which has

assailed the very e0istence of government from the -eginning of time. >ot

now ,urely an ethical or ,hiloso,hical su-+ect$ nor now to -e decided -y

force$ it has -een transferred to the ,eaceful forum of the )udiciary. In

resolving such an issue$ the )udiciary must realie that the very e0istence

of government renders im,erative a ,ower to restrain the individual to

some e0tent$ de,endent$ of course$ on the necessities of the class

attem,ted to -e -enefited. As to the ,articular degree to which the

?egislature and the E0ecutive can go in interfering with the rights of the

citien$ this is$ and for a long time to come will -e$ im,ossi-le for the

courts to determine.

/he doctrines of laissez faireand of unrestricted freedom of the individual$

as a0ioms of economics and ,olitical theory$ are of the ,ast. /he modern

,eriod has shown a wides,read -elief in the am,lest ,ossi-le

demonstration of governmental activity. /he courts unfortunately have

sometimes seemed to trail after the other two -ranches of the Government

in this ,rogressive march.

Considered$ therefore$ ,urely as an e0ercise of the ,olice ,ower$ the courts

cannot fairly say that the ?egislature has e0ceeded its rightful authority. It

is$ indeed$ an unusual e0ercise of that ,ower. But a great malady re6uiresan e6ually drastic remedy.

;urther$ one cannot hold that the li-erty of the citien is unduly interfered

with when the degree of civiliation of the. *anguianes is considered. /hey

are restrained for their own good and the general good of the &hili,,ines.

>or can one say that due ,rocess of law has not -een followed. /o go -ack

to our definition of due ,rocess of law and e6ual ,rotection of the laws$

there e0ists a law the law seems to -e reasona-le it is enforced according

to the regular methods of ,rocedure ,rescri-ed and it a,,lies alike to allof a class.

As a ,oint which has -een left for the end of this decision and which$ in

case of dou-t$ would lead to the determination that section "1' is valid$ is

the attitude which the courts should assume towards the settled ,olicy of

the Government. In a late decision with which we are in full accord$

Gam-le v5S Dander-ilt niversity ("@@ 9outhwestern 7e,orter$ '1@ the

Chief )ustice of the 9u,reme Court of /ennessee writes:

3We can see no o-+ection to the a,,lication of ,u-lic ,olicy as a ratio

decidendi. Every really new 6uestion that comes -efore the courts is$ in the

last analysis$ determined on that theory$ when not determined -y

differentiation of the ,rinci,le of a ,rior case or line of cases$ or -y the aid

of analogies furnished -y such ,rior cases. In -alancing conflicting

solutions$ that one is ,erceived to ti, the scales which the court -elieves

will -est ,romote the ,u-lic welfare in its ,ro-a-le o,eration as a general

rule or ,rinci,le. But ,u-lic ,olicy is not a thing infle0i-le. >o court is wise

enough to forecast its influence in all ,ossi-le contingencies. 8istinctions

must -e made from time to time as sound reason and a true sense of

+ustice may dictate.3

Fur attem,t at giving a -rief history of the &hili,,ines with reference to the

so4called non4Christians has -een in vain$ if we fail to realie that a

consistent governmental ,olicy has -een effective in the &hili,,ines from

early days to the ,resent. /he idea is to unify the ,eo,le of the &hili,,ines

so that they may a,,roach the highest conce,tion of nationality. If all are

to -e e6ual -efore the law$ all must -e a,,ro0imately e6ual in intelligence.

If the &hili,,ines is to -e a rich and ,owerful country$ *indoro must -e

,o,ulated$1 and its fertile regions must -e develo,ed.. /he ,u-lic ,olicy ofthe Government of the &hili,,ine Islands is sha,ed with a view to -enefit

the ;ili,ino ,eo,le as a whole. /he *anguianes$ in order to fulfill this

governmental ,olicy$ must -e confined for a time$ as we have said$ for

their own good and the good of the country.

*ost cautiously should the ,ower of this court to overrule the +udgment of

the &hili,,ine ?egislature$ a coordinate -ranch$ -e e0ercised. /he whole

tendency of the -est considered cases is toward non4interference on the

,art of the courts whenever ,olitical ideas are the moving consideration.)ustice Holmes$ in one of the a,horisms for which he is +ustly famous$ said


26/35

that 3constitutional law$ like other mortal contrivances$ has to take some

chances.3 (Blinn vs. >elson [1


27/35

any time adhered to or maintained allegiance to such a tri-e and which

would 6ualify them whether they reside within or -eyond the ha-itat of a

3non4Christian3 tri-e$ not only to maintain a mode of life inde,endent of

and a,art from that maintained -y such tri-e$ -ut a mode of life as would

not -e inimical to the lives or ,ro,erty or general welfare of the civilied

inha-itants of the Islands with whom they are -rought in contact.

/he contention that$ in this ,articular case$ and without challenging the

validity of the statute$ the writ should issue -ecause of the failure to give

these ,etitioners$ as well as the rest of the fifteen thousand *anguianes

affected -y the reconcentration order$ an o,,ortunity to -e iieard -efore

any attem,t was made to enforce it$ -egs the 6uestion and is$ of course$

tantamount to a contention that thert is no authority in law for the

issuance of such an order.

If the fifteen thousand *anguianes affected -y the ordei com,lained of had

attained that degree of civiliation whicr would have made it ,ractica-le to

serve notice u,on$anc give an o,,ortunity for a real hearing$ to all the

mem-ers of the tri-e affected -y the order$ it may well -( dou-ted whether

the ,rovincial -oard and the 9ecretary oi the Interior would have -een

+ustified in its enforcement By what ,roceeding known to the law$ or to -e

s,ecially ado,ted in a ,articular case$ could the officers of an+ ,rovince

,rovide for a genuine hearing u,on a ,ro,osal issue a reeoncentration

order u,o+i a head4hunting tri-i in the north of the Island of ?uon or u,on

one of the nomadic tri-es whose ha-itat is in the mountain fastnesses of

*indanao$ and Whose individual mem-ers have no fi0e or known ,lace ofresidence$ or u,on the fifteen thousam *anguianes roaming in the wilds of

*indoroO

Ff course$ friendly headmen or chief might and$ as N rule$ should -e

consulted$ after the ,ractice in the nitec 9tates when tri-es or grou,s of

American Indians hav -een ,laced u,on reservations -ut since non4

Christian head men and chiefs in the &hili,,ines have no lawful authorit to

-ind their ,eo,les -y their acts or their consent$ the o-+ection -ased on

lack of a hearing$ would have the same force whether the issuanceof areconcentration order wa or was1 not ,receded -y a ,ow4wow of this kind.

/he truth of the matter is that the ,ower to ,rovid for the issuance of such

orders rests u,on analogous ,rin ci,les to those u,on which the li-erty and

freedom o action of children and ,ersons of unsound minds is re strained$

without consulting their wishes$ -ut for their owi good and the general

welfare. /he ,ower rests u,on neces sity$ that 3great master of all things$3

and is ,ro,erl e0ercised only where certain individuals or grou,s of in

dividuals are found to -e of such a low grade of civiliation that their own

wishes cannot -e ,ermitted to determine their mode of life or ,lace of

residence.

/he status of the non4Christian inha-itants of these Islands$ and the s,ecial

and necessarily ,aternal attitude assumed toward them -y the Insular

Government is well illustrated -y the following ,rovisions found in the

Administrative Code of 1


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he is a 3non4Christian3 as that term is used in the statute. I$ therefore$

e0,ress no o,inion on that 6uestion at this time.

%ISSENTING

"NS#N, &.,

I dissent. /he ,etitioners were de,rived of their li-erty without a hearing.

/hat fact is not denied. I cannot give my consent to any act which de,rives

the hum-lest citien of his +ust li-erty without a hearing$ whether he -e a

Christian or non4Christian. All ,ersons in the &hili,,ine Islands are entitled

to a hearing$ at least$ -efore they are de,rived of their li-erty.

%ISSENTING

*FI7$ ).$ with whom A7A??F$ and 9/7EE/$ )).$ concur$

I dissent.

I realie that a dissenting o,inion carries little weight$ -ut my sense of

+ustice will not ,ermit me to let this decision go on record without

e0,ressing my strong dissent from the o,inion of )ustice *alcolm$

concurred in -y a ma+ority of the court. I shall not attem,t to analye the

o,inion or to go into the 6uestions in detail. I shall sim,ly state$ as -riefly

as may -e$ the legal and human side of the case as it ,resents itself to my

mind.

/he facts are that one 7u-i and various other *anguianes in the &rovince

of *indoro were ordered -y the ,rovincial governor of *indoro to remove

their residence from their native ha-itat and to esta-lish themselves on a

reservation at /ig-ao in the &rovince of *indoro and to remain there$ or -e

,unished -y im,risonment if they esca,ed. /his reservation$ as a,,ears

from the resolution of the ,rovincial -oard$ e0tends over an area of @@

hectares of land$ which is a,,ro0imately "$@@@ acres$ on which a-out three

hundred *anguianes are confined. Fne of the *anguiahes$ 8a-alos$

esca,ed from the reservation3 and was taken in hand -y the ,rovincial

sheriff 4and ,laced in ,rison at Cala,an$ solely -ecause he esca,ed from

the reservation. /he *anguianes sued out a writ of ha-eas cor,us in this

court$ alleging that they are de,rived of their li-erty in violation of law.

/he 9olicitor4General of the &hili,,ine Islands makes return to the writ

co,ied in the ma+ority o,inion which states that the ,rovincial governor of

*indoro with the ,rior a,,roval of his act -y the 8e,artment 9ecretary

ordered the ,lacing of the ,etitioners and others on a reservation.

/he *anguianes$ it is stated on ,age %egrito -lood and have not

advanced -eyond the >egritos in civiliation. /hey are ,eaceful$ timid$

,rimitive$ seminomadic ,eo,le. /hey num-er a,,ro0imately 1'$@@@ (O.

/he *anguianes have shown no desire for community life$ and$ as

indicated in the ,ream-le to Act >o. '=$ have not ,rogressed sufficiently

in civiliation to make it ,ractica-le to -ring them under any form of

munici,al government.3

It may -e well to add that the last &. I. Census (1


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/he *anguianes roamed its mountains and valleys$ fishing and hunting at

will long -efore *agallanes [*agellan# anchored his -oats in the waters of

Ce-u. /hey have made little or no ,rogress in the ways of civiliation.

3/hey are a ,eaceful$ timid$ ,rimitive$ seminomadic ,eo,le$3 whom the

Government of the &hili,,ine Islands would -ring ander the -eneficient

influence of civiliation and ,rogress.

/he law ,rovides for it in section "1'$ of the Administrative Code and for

those who like 8a-alos do not take kindly$to the ways ,rovided4for

civiliing them section "='< ,rovides the ,unishment.

/he attorney for the ,etitioners has raised various constitutional 6uestions$

-ut only the fundamental one will -e considered -y me. It is that the

sections of the Administrative Code$ "1' and "='


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to abuse them.

3/here is no dou-t in my mind that this ,eo,le has not a right conce,tion

of li-erty and does not ,ractice li-erty in a rightful way. /hey understand

li-erty as the right to do anything they willgoing from one ,lace to

another in the mountains$ -urning and destroying forests and making

illegal caingins thereon.

3>ot knowing what true li-erty is and not ,ractising the same rightfully$

how can they allege that they are -eing de,rived thereof without due

,rocess of lawO

3But does the Constitutional guaranty that 2no ,erson shall -e de,rived of

his li-erty without due ,rocess of law2 a,,ly to a class of ,ersons who do

iiot have a correct idea of what li-erty is and do not ,ractise li-erty in a

rightful wayO

3/o say that it does will mean to sanction and defend an erroneous idea of

such class of ,ersons as to what li-erty is. It will mean$ in the case at -ar$

that the Government should not ado,t any measures looking to the welfare

and advancement of the class of ,ersons in 6uestion. It will mean that this

,eo,le should -e let alone in the mountains and in a ,ermanent state of

savagery without even the remotest ho,e of coming to understand li-erty

in its true and no-le sense.

3In dealing with the -ackward ,o,ulation$ like the *anguianes$ the

Government has -een ,laced in the alternative of eitherJ letting them

alone or guiding them in the ,ath of civiliation. /he latter measure was

ado,ted as the one more in accord with humanity and with national

conscience.

3/he national legislation on the su-+ect of non4Christian ,eo,le has tended

more and more towards the education and civiliation of such ,eo,le and

fitting them to -e citiens.3

/here a,,ear to -e two intimations or charges in this memorandum one is

that the *anguianes destroy the forests -y making a caingin.. What is a

3caingin3 9im,ly this./hese ,eo,le move their cam, or ,lace of a-ode

fre6uently and when they do move to a new ,lace$ it is necessary to clear

the land in order to ,lant corn and camotes (sweet ,otatoes and they cut

down the smaller trees and -urn these around the larger ones$ killing

them$ so that they can ,lant their cro,s. /he fires never s,read in the

tro,ical undergrowth of an island1 like *indoro$ -ut the trees within the

caingin are killed and cro,s are ,lanted and harvested. /his land may -e

a-andoned later ondue to su,erstition$ to a lack of game in the

neigh-orhood$ to ,oor cro,s from e0hausted fertility$ or to a natural desire

to move on.

Granting that the *anguianes do make caingins or clear lands in s,ots and

then a-andon them for the more fertile lands$ which every man knows to

-e +ust over the hills$ we cannot see that they are committing such a great

a-use as to +ustify incarcerating them on a small tract of land for

incarceration it is and nothing less.

/he second intimation or charge is that 3they will -ecome a heavy -urden

to the state and on account of their ignorance they will commit crimes and

make de,redations$ or if not they &ill be sub8ected to involuntary servitude

by those &ho &ant to abuse them.3 /hey have never -een a -urden to the

state and never will -e. /hey have not committed crimes and$ when theydo$ let the law ,unish them. /he authorities are antici,ating too much from

these 3,eaceful$ timid$ ,rimitive$ semi4nomadic ,eo,le.3 /heir history does

not demonstrate that we must e0,ect them to commit crimes and +ail them

to ,revent the ,ossi-ility. But the 9ecretary says 3they will -e su-+ected to

involuntary servitude -y those who want to a-use them.3 Are they more

lia-le to -e su-+ected to involutary servitude when left free to roam their

native hills and gain a livelihood as they have -een accustomed to for

hundreds of years$ than they will -e if closely confined on a narrow

reservation from which they may not esca,e without facing a term in +ailO

Is it not more likely that they will -e glad to e0change their 3freedom3 on a


31/35

small reservation for the great -oon of -inding themselves and their

children to the more fortunate Christian ;ili,inos who will feed them and

clothe them in return for their servicesO

I think it not only ,ro-a-le -ut almost a certainty that they will all -e

su-+ected to involuntary ,ersonal servitude if their freedom is limited$ asi it

has -een. How will they liveO /here may -e ,ersons who are willing to lend

them money with which to -uy food on the ,romise that they will work for

them. And if they acce,t the loan and do not work for the lender we have

another law on the statute -ooks$ Act >o. "@egritos$ are very low in the scale of civiliation$ -ut they are one and all

3non4Christians$3 as the term is used and understood in law and in fact.

All of them$ according to the court2s o,inion under the ,resent law$ may -e

taken from their homes and herded on a reservation at the instance of the

,rovincial governor$ with the ,rior a,,roval of the de,artment head. /o

state such a monstrous ,ro,osition is to show the wickedness and illegality

of the section of the law under which these ,eo,le are restrained of their

.li-erty. But it is argued that there is no ,ro-a-ility of the de,artment head

ever giving his a,,roval to such a crime$ -ut the fact that he can do it and

has done it in the ,resent case is what makes the law unconstitutional. /he

ar-itrary and unrestricted ,ower to do harm should -e the measure -y

which a law2s legality is tested and not the ,ro-a-ility of doing harm.

3It has -een said that this is a government of laws and not of men that

there is no ar-itrary -ody of individuals that the constitutional ,rinci,les

u,on which our government and its institutions rest do not leave room for

the ,lay and action of ,urely ,ersonal and ar-itrary ,ower$ -ut that all in

authority are guided and limited -y these ,rovisions which the ,eo,le

have$ through the organic law$ declared shall -e the measure and sco,e of

all control e0ercised over them. In ,articular the fourteenth amendment$

and es,ecially the e6ual ,rotection clause$ thereof$ for-ids that the

individual shall -e su-+ected to any ar-itrary e0ercise of the ,owers of

government it was intended to ,rohi-it$ and does ,rohi-it$ any ar-itrary

de,rivation of life or li-erty$ or ar-itrary s,oliation of ,ro,erty.

3As we have seen$ a statute which makes a ,urely ar-itrary or

unreasona-le classification$ or which singles out any ,articular individual

or class as the su-+ect of hostile and discriminating legislation$ is clearly

unconstitutional as -eing o,,osed to the fourteenth amendment and

es,ecially to the e6ual ,rotection clause thereof. /his is a ,lain case$ and

re6uires no further discussion.3 (D6I. $ Encyclo,edia of . 9. 9u,remeCourt 7e,orts$ ,. !%%.

3When we consider the nature and the theory of our institutions of

government$ the ,rinci,les u,on which they are su,,osed to rest$ and

review the history of their develo,ment$ we are constrained to conclude

that they do not mean to leave room for the ,lay and4action of ,urely

,ersonal and ar-itrary ,ower. 9overeignty itself is$ of course$ not su-+ect to

law$ for it is the author and source of law -ut in our system while

sovereign ,owers are delegated to the agencies of government$

sovereignty itself remains with the ,eo,le$ -y whom and for whom all


32/35

government e0ists and acts. And the law is the definition and limitation of

,ower. It is$ indeed$ 6uite true$ that there must always -e lodged

somewhere$ and in some ,erson or -ody$ the authority of final decision

and$ in many cases of mere administration the res,onsi-ility is ,urely

,olitical$ no a,,eal lying e0ce,t to the ultimate tri-unal of the ,u-lic

+udgment$ e0ercised either in the ,ressure of o,inion or -y means of the

suffrage. But the fundamental rights to life$ li-erty$ and the ,ursuit of

ha,,iness$ considered as individual ,ossessions$ are secured -y those

ma0ims of constitutional law which are the monuments showing the

victorious ,rogress of the race in securing to men the -lessings of

civiliation under the reign of +ust and e6ual laws$ so that$ in the famous

language of *assachusetts Bill of 7ights$ the Government of

Commonwealth 2may -e a government of 3law and not of men.2 ;or the

very idea that one man may -e com,elled to hold his life$ or the means of

living$ or any material right essential to the en+oyment of life$ at the mere

will of another$ seems to -e intolera-le in any country where freedom

,revails$ as -eing the essence of slavery itself.3 (Qick Wo vs. Ho,kins$ 11

. 9.$ !=.

It is said that the ,resent law is an old Act -eing in su-stance Act >o. '=

of the &hili,,ine Commission. But i t has never -een -rought -efore this

court for determination of its constitutionality. >o matter how -eneficient

the motives of the lawmakers if the law tends to de,rive any man of life$

li-erty$ or ,ro,erty without due ,rocess of law$ it is void.

In my o,inion the acts com,lained of which were taken in conformity with

section "1' of the Administrative Code not only de,rive these*anguianes of their li-erty$ without due ,rocess of law$ -ut will in all

,ro-a-ility de,rive them of their life$ without due ,rocess of law. History

teaches that to take a semi4nomadic tri-e from their native fastnesses and

to transfer them to the narrow confines of a reservation is to invite disease

and suffering and death.

;rom my long e0,erience in the Islands$ I should say that it would -e a

crime of little less magnitude to take the Ifugaos from their mountain

homes where they have reclaimed a wilderness and made it a land of

-eauty and fruitfulness and to transfer them to the more fertile$

unoccu,ied$ malaria infested valleys which they look down u,on from their

fieldsthan it would -e to order their deca,itation en masse.

/here can -e no denial that the Ifugaos are 3non4Christians$3 or 3wild

tri-es3 and are in e0actly the same category as the *anguianes. If the

*anguianes may -e so taken from their native habitatand reconcentrated

on a reservationin effect an o,en air +ailthen so may the Ifugaos$ so

may the /inguianes$ who have made more ,rogress than the Ifugaos$ and

so may the *oros.

/here are 3non4Christian3 in nearly every ,rovince in the &hili,,ine Islands.

All of the thirty4nine governors u,on the ,rior a,,roval of the head of the

de,artment$ have the ,ower under this law to take the non4Christian

inha-itants of their different ,rovinces from their homes and ,ut them on a

reservation for 3their own good and the general good of the &hili,,ines$3

and the courts will grant them no relief. /hese unfortunate citiens of the

&hili,,ine Islands would hold their li-erty$ and their lives$ may -e$ su-+ect

to the unregulated discretion of the ,rovincial governor.

And who would -e safeO

After the reservation is once esta-lished might not a ,rovincial governor

decide that some ,olitical enemy was a non4Christian$ and that he would

-e safer on the reservation. >o matter what his education and culture$ he

could have no trial$ he could make no defense$ the +udge of the court might

-e in a distant ,rovince and not within reach$ and the ,rovincial governor2sfiat is final.

/he case of the nited 9tates vs. Crook (;ederal Cases 1


33/35

of the most ,owerful$ most enlightened$ and most christianied nations of

modern times. Fn the one side$ we have the re,resentatives of this wasted

race coming into this national tri-unal of ours$ asking for +ustice and li-erty

to ena-le them to ado,t our -oasted civiliation$ and to ,ursue the arts of

,eace$ which have made us great and ha,,y as a nation on the other side$

we have this magnificent$ if not magnanimous$ government$ resisting this

a,,lication with the determination of sending these ,eo,le -ack to the

country which is to them less desira-le than ,er,etual im,risonment in

their 8wn native land. But I think it is credita-le to the heart and mind of

the -rave and distinguished officer who is made res,ondent herein to say

that he has no sort of sym,athy in the -usiness in which he is forced -y his

,osition to -ear a ,art so cons,icuous and$ so far as I am individually4

concerned$ I think it not im,ro,er to say that$ if the strongest ,ossi-le

sym,athy could give the relators title to freedom$ they would have -een

restored to li-erty the moment the arguments in their -ehalf were closed.

>o e0amination or further thought would then have -een necessary or

e0,edient. 4But in a country where li-erty is regulated -y law$ something

more satisfactory and enduring than mere sym,athy must furnish and

constitute the rule and -asis of +udicial action. It follows that this case must

-e e0amined and decided on ,rinci,les of law$ and that unless the relators

are entitled to their discharge under the constitution or laws of the nited

9tates$ or some treaty made ,ursuant thereto$ they must -e remanded to

the custody of the officer who caused their arrest$ to -e returned to the

Indian /erritory which they left without the consent of the government.

3Fn the th of A,ril$ 1=


34/35

3A 6uestion of much greater im,ortance remains for consideration$ which$

when determined$ will -e decisive of this whole controversy. /his relates to

the right of the government to arrest and hold the relators for a time$ for

the ,ur,ose of -eing returned to a ,oint in the Indian /erritory from which

it is alleged the Indians esca,ed. I am not vain enough to think that I can

do full +ustice to a 6uestion like the one under consideration. But$ as the

matter furnishes so much valua-le material for discussion$ and so much

food for reflection$ I shall try to ,resent it as viewed from my own

stand,oint$ without reference to conse6uences or criticisms$ which$ though

not s,ecially invited$ will -e sure to follow.

3Fn the 1'th day of August$ 1=%$ Congress ,assed the general Indian

a,,ro,riation -ill$ and in it We find a ,rovision authoriing the secretary ofthe interior to use T"'$@@@ for the removal of the &oncas to the Indian

/erritory$ and ,roviding them a home therein$ &ith consent of the tribe.

(1< 9ta.$ 1


35/35

[1#"1 . 9.$ !@" ' ?. ed.$ 1@

Documents

[Consti Law 2] 95- Rubi vs Provincial Board of Mindoro.doc