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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
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/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
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,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
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literally$ might result in the issuance of ha-eas cor,us$ is that of nited
9tates vs. Crook ([1=o. 1
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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
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,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
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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
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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
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+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
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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
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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
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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
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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
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that 3constitutional law$ like other mortal contrivances$ has to take some
chances.3 (Blinn vs. >elson [1
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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
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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
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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
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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=
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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
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[1#"1 . 9.$ !@" ' ?. ed.$ 1@