Republic of the PhilippinesSUPREME COURTManila

EN BANC
G.R. No. L-200 March 28, 1946
ANASTACIO LAUREL, petitioner, vs.ERIBERTO MISA, a !"r#c$or o% Pr"o&,
respondent.
Sulpicio V. Cea for petitioner.First Assistant Solicitor General Reyes and Solicitor
Hernandez, Jr. for respondent.Arturo A. Alafriz as amicus curiae.
BENG'ON, J.(
Anastacio Laurel demands his release form Bilibid Prison, mainly assertin that
Common!ealth Act No. "#$, creatin the People%s Court, specially section &',
under !hich he is detained as a political prisoner, is unconstitutional and void. (he
)olicitor *eneral, meetin the issue, sustains the validity of the !hole la!.
Accordin to the pleadins, the petitioner, a +ilipino citi,en, !as arrested in
Camarines )ur in May, &'-., by the /nited )tates Army, and !as interned, under
a commitment order 0for his active collaboration !ith the 1apanese durin the
1apanese occupation,0 but in )eptember, &'-., he !as turned over to the
Common!ealth *overnment, and since then has been under the custody of the
respondent 2irector of Prisons.
(he leality of the prisoner%s arrest and detention by the military authorities of
the /nited )tates is no! beyond 3uestion.
&
4is present incarceration, !hich is
merely continuation of his previous apprehension, has lasted 0more than si5
hours0 counted from his delivery to the respondent6 but section &' of
Common!ealth Act No. "#$ provides in part as follo!s7
/pon delivery by the Commander8in8Chief of the Armed +orces of the /nited
)tates in the Philippines of the persons detained by him as political prisoners, to
the Common!ealth *overnment, the 9ffice of )pecial Prosecutors shall receive all
records, documents, e5hibits, and such other thins as the *overnment of the
/nited )tates may have turned over in connection !ith and:or affectin said
political prisoners, e5amine the aforesaid records, documents, e5hibits, etc., and
ta;e, as speedily as possible, such action as maybe proper7 Provided, o!ever, . .
.. And, provided, furter, (hat, in the interest of public security, the provisions of
article one hundred t!enty8five of the Revised Penal Code, as amended, shall be
deemed, as they are hereby, suspended, insofar as the aforesaid political
prisoners are concerned, until the filin of the correspondin information !ith the
People%s Court, but the period of suspension shall not be more than si5 <"=
months from the formal delivery of said political prisoners by the Commander8in8
Chief of the Armed +orces of the /nited )tates in the Philippines to the
Common!ealth *overnment.
>n vie! of the provision, and the statement of the )olicitor *eneral that even on
the date the petition !as presented his office had, ready for filin, an information
charin herein petitioner !ith treason, !e fail to see ho! petitioner%s release
may no! be decreed.
4o!ever, he contends that the aforesaid section violates our Constitution,
because it is <a= discriminatory in nature6 <b= unla!ful deleation of leislative
po!ers6 and <c= retroactive in operation.
<a= >t is first arued that the suspension is not eneral in application, it bein
made operative only to 0the political prisoners concerned,0 that other citi,ens are
not denied the si58hour limitation in article &$. of the Revised Penal Code, that
such discrimination is une5cusable and amounts to denial of the e3ual protection
of the la!s.
>t is accepted doctrine in constitutional la! that the 0e3ual protection0 clause
does not prevent the Leislature from establishin classes of individuals or
ob?ects upon !hich different rules shall operate @ so lon as the classification is
not unreasonable.
$
>nstances of valid classification are numerous. (he point to be
determined then, is !hether the differentiation in the case of the political prisoner
is unreasonable or arbitrary.
9ne of the proclamations issued by *eneral MacArthur upon his arrival in Leyte
<2ecember $', &'--= referred to those +ilipino citi,ens !ho had voluntarily iven
aid, comfort and sustenance to the 1apanese. >t announced his purpose to to hold
them in restraint for the duration of the !ar, 0!hereafter they shall be turned
over to the Philippine *overnment for its ?udment upon their respective cases.0
Ahen active hostilities !ith 1apan terminated, *eneral MacArthur ordered the
delivery of the Common!ealth of all the prisoners theretofore ta;en under his
said proclamation. (here !as ",BBB in round numbers. (he problem problem !as
momentous and urent. Criminal informations aainst all, or a ma?ority, or even a
substantial number of them could not be properly filed in the si58hour period.
(hey could not obviously be turned loose, considerin the conditions of peace and
order, and the safety of the prisoners themselves. )o the President, by virtue of
his emerency po!ers, promulated E5ecutive 9rder No. ". suspendin article
&$. of the Revised Penal Code, for not more than thirty days, !ith reard to said
detainees or internees, havin found such suspension necessary to 0enable the
*overnment to fulfill its responsibilities and to adopt temporary measures in
relation !ith their custody and the investiation, prosecution and disposal of their
respective cases.0 (he 9rder added that it shall be in force and effect until the
Conress shall provide other!ise. Conress later approved Common!ealth Act.
No. "#$, establishin the People%s Court and the 9ffice of )pecial Prosecutors for
the prosecution and trial of crimes aainst national security committed durin the
second Aorld Aar. >t found the thirty8day period too short compared !ith the
facilities available to the prosecution, and set the limit at si5 months.
Considerin the circumstances, !e are not prepared to hold the e5tension of the
period for the political detainees !as unreasonable. (he Leislature chose to ive
the prosecutor%s office sufficient time to investiate and to file the proper chare
@ or to dischare those !hom it may find innocent. >f time had not been ranted,
the prosecutor !ould perhaps have been forced to indict all the detainees
indiscriminately6 reservin, of course, its riht subse3uently to re3uest the
liberation of those it may thin; not uilty. But such !holesale indictment !as
obviously neither practical nor desirable. Ae !ill allo! that there may be some
dispute as to the !isdom or ade3uacy of the e5tension. Cet the point is primarily
for the Leislature to decide. (he only issue is the po!er to promulate special
rules for the custody and investiation of active collaborationists, and so lon as
reasons e5ist in support of the leislative action courts should be careful not to
deny it.
>n this connection, it must be stated there can really be no substantial round to
assail the si58month e5tension, in vie! of the provisions authori,in the release
under bail. Article &$. of the Revised Penal Code !as intended to prevent any
abuse resultin from confinin a person !ithout informin him of his offense and
!ithout permittin him to o on bail. Common!ealth Act No. "#$ ives no
occasion to such abuse. (he political prisoners ;no!, or ouht to ;no!, they are
bein ;ept for crimes aainst national security. And they are enerally permitted
to furnish bail bonds.
<b= (here is hardly any merit to the arument that as 0the duration of the
suspension of article &$. is placed in the hands of the )pecial Prosecutor%s
9ffice,0 the section constitutes an invalid deleation of leislative po!ers6 for as
e5plained by the )olicitor8*eneral, the result @ some informations filed before,
others after!ards @ is merely the 0conse3uence of the fact that si5 thousand
informations could not be filed simultaneously, and that some one had to be first
or some one else, necessarily the last.0 (he la!, in effect, permitted the )olicitor8
*eneral to file the informations !ithin si5 months. And statutes permittin officers
to perform their duties !ithin certain periods of time may not surely be declared
invalid deleations of leislative po!er.
<c= Nor is the position correct that section &' is retroactive in its operation. >t
refers to detention after its passae @ not before. >ncidentally, there is no
constitutional ob?ection to retroactive statutes !here they relate, to remedies or
procedure.
D
(he arument is advanced that !hen he !as arrested, <May, &'-.=, article &$. of
the Revised Penal Code !as in force, and petitioner could have as;ed for release
after si5 hours and, therefore, Common!ealth Act No. "#$ that ta;es a!ay that
riht is e" post facto, retroactive and fundamentally ob?ectionable. (he premises
are incorrect. >n May, &'-., e could not ave as#ed for release after si5 hours.
>n other !ords, he !ould not have been dischared from the custody. <Ra3ui,a
vs. Branford, supra.= Article &$. of the Revised Penal Code !as in force, it is true6
but not as to him. (he la!s of the Common!ealth !ere revived in Camarines )ur
by operation of *eneral MacArthur%s proclamation of 9ctober $D, &'--, upon its
liberation from enemy control6 but sub?ect to his reservation to hold active
collaborationists in restraint 0for the duration of the !ar.0 )o, persons
apprehended under that directive, for treasonable collaboration, could not
necessarily invo;e the benefits of article &$. of the Revised Penal Code.
/ndoubtedly the Leislature could validly repeal section &$. of the Revised Penal
Code. 4ad it done so, herein petitioner !ould have no round to protest on
constitutional principles, as he could claim no vested riht to the continued
enforcement of said section.
-
(herefore, a fortiori he may not complain, if, instead
of repealin that section, our la!ma;in body merely suspended its operation for
a definite period of time. )hould he counter that such repeal or suspension must
be eneral to be valid, he !ill be referred to the precedin considerations
reardin classification and the e3ual protection of the la!s.
Aherefore, !e perceive no irreconcilable conflict bet!een the Constitution and
the challened portions of section &' of Common!ealth Act No. "#$.
(he other features of the People%s Court Act !hich are the sub?ect of denunciation
by petitioner do not, in our opinion, re3uire specific elucidation at this time,
because he has not as yet been held into that court, and the issues appear to
have no important or necessary connection !ith his current deprivation of liberty.
.
(he petition for the !rit of a$eas corpus !ill be denied. Aith costs.
%oran, C.J., Jaranilla, Feria, &e Joya, Pa$lo, Hilado, and 'riones, JJ., concur.
S#)ara$# O)"&"o&
O'AETA, *., +"$h +ho, Para, J., concurrin in the result7
> concur !ith the ma?ority in upholdin the constitutionality of section &' of the
People%s Court Act. >n the vie! > held in the Ra3ui,a case the detention of the
petitioner by the military authorities !as illeal for lac; of due process. But the
same thin cannot be said as to his present detention by the respondent 2irector
of Prisons, especially no! that an information for treason has been filed aainst
him.
PER-ECTO, J., dissentin7
9n or about May ", &'-., petitioner !as arrested by the C.>.C., /nited )tates
Army, Camarines )ur. 9n )eptember ", &'-. he !as turned over to the
Common!ealth *overnment by the /nited )tates Army and since that date he
remained in prison under the personal custody of the respondent 2irector of
Prisons, and no! he comes before us complainin that his arrest and detention
are illeal and in violation of many of his constitutional rihts, in that7 0<a= 4e !as
arrested and detained !ithout a la!ful !arrant of arrest. <See Constitution,
Article >>>, section D.= <b= No information or chare has been loded aainst him,
informin him of the nature and cause of his arrest. <See Constitution, Article >>>,
section &E.= <c= 4e !as not iven an opportunity to confront the !itnesses !ho
caused his arrest and detention. <See Constitution, Article >>>, section &E.= <d= 4e
!as not accorded the benefit of compulsory process to secure the attendance of
!itnesses in his behalf. <See Constitution, Article >>>, section &E.= <e= 4e !as and
is bein denied the riht to a prompt, speedy and public trial. <See Constitution,
Article >>>, section &E.= <f= 4is arrest and detention !as and is !ithout due
process of la!. <See Constitution, Article >>>, section &..= <= 4e !as not accorded
the e3ual protection of the la!s. <See Constitution, Article >>>, section &.= <h= 4e
!as sub?ected to cruel and unusual punishment. <See Constitution, Article >>>,
section &'.= <i= 4e !as committed to prison and detained by the respondent
under a bill of attainder. <See Constitution, Article >>>, section &&.=0
Petitioner also maintains that the People%s Court Act No. "#$, under !hich the
respondent herein purports to act, violates not only the spirit but also the letter of
the fundamental la! in many !ays, in that7 0<a= >t constitutes an assault upon
the independence of the ?udiciary. <See (ydins8Mc2uffie La!, section $, par. FaG.=
<b= >t deprives the accused of certain rihts already ac3uired at the time of its
passae, and therefore is e58post facto in nature <See Constitution, Article >>>,
section &&.= <c= >t parta;es of the nature of a bill of attainder. <See Constitution,
Article >>>, section &&.= <d= >t denies the e3ual protection of the la!s. <See
Constitution, Article >>>, section &.= <e= >t provides for cruel and unusual
punishment. <See Constitution, Article >>>, section &'.= <f= >t deprives the citi,en
of his day in court. <See Constitution, Article >>>, section $&.= <= >t constitutes an
unla!ful deleation of leislative and e5ecutive functions. <See (ydins8Mc2uffie
La!, section $, par. FaG.= <h= >t covers more than one sub?ect matter. <See
Constitution, Article >H, section &$, par. &.= <i= >t authori,es the charin and
multifarious crimes in one complaint or information thereby ma;in it impossible
to be informed to the real nature and cause of the accusation aainst the
accused. <See Constitution, Article >>>, section &E.= <?= >t denies the constitutional
riht of a person to bail before conviction. <See Constitution, Article >>>, section
&".=0
Conse3uently, petitioner prays that Common!ealth Act No. "#$ be declared
unconstitutional and null and void, that his detention, irrespective of the validity
of said act, be declared illeal and in violation of many of his constitutional rihts,
and that an order be issued for his complete and absolute release.
Respondent ans!ered that, pursuant to the authority of the proclamation issued
by the Commander in Chief of the American Armed +orces, )outh!est Pacific
Area, *eneral 2oulas MacArthur, dated 2ecember $', &'--, petitioner !as
arrested and thereafter detained on May &B, &'-., under a security commitment
order, issued by the commandin officer of 'B-th Counter >ntellience Corps
2etachment, /nited )tates Army, upon the chare of 0active collaboration !ith
the 1apanese durin the 1apanese occupation06 that his subse3uent detention as
a political prisoner, upon the transfer of his person to the Common!ealth
*overnment by the /nited )tates Army, pursuant to the terms of the
proclamation issued by *eneral 2oulas MacArthur on 2ecember $', &'--, of
E5ecutive 9rder No. "., issued by the President of the Philippines on )eptember
D, &'-., and pursuant to the provisions of Common!ealth Act No. "#$, approved
on )eptember $., &'-., !as a mere loical se3uence of his previous commitment
and hence e3ually valid and leal.
Respondent allees also that petitioner has not as yet availed of the benefits of
section &' of Common!ealth Act No. "#$, !hich confers upon political prisoners
the privilee of securin their release on bail upon proper application therefor
!ith the People%s Court6 that Common!ealth Act No. "#$ does not trench upon,
nor contravene any of the provisions of the Constitution6 that it is not e" post
facto in nature in that it suspends, in the interests of national security, the
provision of article &$. of the Revised Penal Code for a period of not more than
si5 months, !hich is fully ?ustified by the practical necessities of the situation,
considerin the circumstances that there are more than ",BBB political prisoners
chared !ith the rave crime of treason and other offenses aainst national
security6 that said la! does not materially impair the substantial rihts of the
accused to have the 3uestion of his uilt determined accordin to the substantive
la! e5istin at the time of the commission of the offense, that it is not a bill of
attainder, since it does not inflict punishment !ithout a ?udicial trial6 that it
neither deprives the citi,en of his day in court, nor it provides for cruel and
unusual punishment6 that it applies e3ually and uniformly to all persons similarly
situated6 that it complies !ith the constitutional re3uisites of due process of la!
as applied in criminal procedure6 that it does not contravene the constitutional
re3uirement that the accused must be informed of the nature of the accusation
aainst him6 that instead of suppressin or denyin the constitutional riht of an
accused to bail before conviction, said act reconi,es and concedes to all accused
in section &' the riht to bail, e5cept those chared !ith capital offenses !hen
evidence of uilt is stron6 that the information aainst the petitioner, charin
him !ith treason upon ten counts !as ready for filin in the People%s Court even
on the date the petition in this proceedin !as presented6 and that in due
deference to this )upreme Court, the filin of the said information has been held
in abeyance pendin the final disposition of this a$eas corpus proceedin.
+or purposes of this discussion, the discrepancy bet!een petitioner and
respondent as to the correct date !hen petitioner !as arrested, May " or May &B,
cannot affect the merits of the case.
(itout a la!ful !arrant of arrest. @ Ahether the arrest too; place on May ",
&'-., as alleed by petitioner or on May &B, as alleed by respondent, there is
absolutely no 3uestion that petitioner !as arrested !ithout la!ful !arrant of
arrest.
)ection &7D of Article >>> of the Constitution provides that 0no !arrants shall issue
but upon probable cause, to be determined by the ?ude after e5amination under
oath or affirmation of the complaint and the !itnesses he may produce, and
particularly describin the place to be searched, and the persons or thins to be
sei,ed.0 (his provision, considered in connection !ith the provision of section &7&
of article >>> of the Constitution and section &7&. of the same article that no
person shall be deprived of liberty or be held to ans!er for a criminal offense
!ithout due process of la!, implies necessarily that one of the essential re3uisites
for deprivin a person of his liberty, !hen he is accused of an offense, is the
e5istence of a !arrant of arrest issued in accordance !ith the provisions of the
Constitution.
Ae are of opinion that the arrest of petitioner !as e5ecuted in flarant violation of
the above8mentioned constitutional provisions.
)o information as to any car*e. @ (he Constitution provides that one of the
fundamental rihts of an accused is 0to be informed of the nature and cause of
the accusation aainst him.0 <)ection &7&E, Article >>> of the Constitution.=
(his constitutional uarantee appears e3ually to have been violated in petitioner%s
case.
Respondent%s alleation that petitioner is detained because of his active
collaboration !ith the 1apanese durin the 1apanese occupation does not inform
petitioner of the nature and cause of the accusation aainst him, it appearin that
there is no such offense described in any la! applicable to petitioner as 0active
collaboration !ith the 1apanese durin the 1apanese reime.0
%eetin* !itnesses face to face. @ Petitioner complains that he !as not iven an
opportunity to confront his !itnesses !ho caused his arrest detention.
(he complaint is e3ually !ell8ta;en. (here is nothin in the record to sho! that
before, durin, or at any time after his arrest, petitioner has ever been accorded
the opportunity of meetin the !itnesses 0face to face0 as provided in section
&7&E of Article >>> of the Constitution.
Attendance of !itnesses in is $ealf. @ Petitioner complains he !as not
accorded of the benefit of compulsory process to secure the attendance of the
!itnesses in his behalf as provided in section &7&E of Article >>> of the
Constitution. (his alleation has not been disputed.
Ae have, therefore, here another flarant violation of a constitutional riht of
petitioner.
Speedy and pu$lic trial. @ Petitioner invo;es also his constitutional riht to 0have
a speedy and public trial0 as provided in section &7&E of Article >>> of the
Constitution.
(here is absolutely no 3uestion that this constitutional riht of petitioner has been
e3ually violated.
+,ual protection of te la!s. @ Petitioner complains that he !as not accorded
e3ual protection of the la!s as provided in section &7& of Article >>> of the
Constitution.
Petitioner%s alleation is e3ually !ell8founded, there bein no 3uestion as to the
fact that he !as and he is bein deprived of several of his fundamental rihts
under the Constitution !ithout any leal process.
Cruel and unusual punisment. @ Petitioner complains that he !as sub?ected to
cruel and unusual punishment in violation of section &7&' of Article >>> of the
Constitution.
(here is no 3uestion that petitioner is bein deprived of his liberty !ithout any
information or complaint charin him of any specified offense under the la!s of
the land.
)o it appears that he is bein, in effect, sub?ected to the punishment of
deprivation of liberty for almost one year, !ithout any definite information as to
!hen !ill it end. (his means that he is bein sub?ected to imprisonment for an
indefinite term. >t is certainly a cruel and unusual punishment, not only because it
is not authori,ed by any la! of the land, but because it is meted out to petitioner
for no specific offense at all. (he violation of section &7&' of Article >>> of the
Constitution is indispensable.
Petitioner complains that those responsible for his detention appear to have never
heard of such trifles as those contained in the Bill of Rihts and even if they did,
they contend that the Constitution !as never meant for the 0untouchables0
;no!n in the contemporary Philippine history as a 0collaborators,0 and that no
one can imaine a more larin case for the rantin of a !rit of a$eas corpus
than that of the petitioner, it appearin that the circumstances of his arrest are
self8demonstrative of the most scandalous violation of the Bill of Rihts ever
perpetrated under the American fla.
Petitioner, as has been sho!n, appears !ell supported in his complaint.
No!, as one of the 3uestions raised in this case, let us determine the validity of
that portion of section &' of Common!ealth Act No. "#$, an act creatin the
People%s Court, !hich provides as follo!s7
. . . And, provided, furter, (hat, in the interest of public security, the provisions
of article one hundred t!enty8five of the Revised Penal Code, as amended, shall
be deemed, as they are hereby, suspended, insofar as the aforesaid political
prisoners are concerned, until the filin of the correspondin information !ith the
People%s Court, but the period of suspension shall not be more than si5 <"=
months from the formal delivery of said political prisoners by the Commander8in8
Chief of the Armed +orces of the /nited )tates in the Philippines to the
Common!ealth *overnment.
(he provision of the Revised Penal Code !hich has been virtually suspended by
this la! is7
AR(. &$.. &elay in te delivery of detained persons to te proper -udicial
autorities. @ (he penalties provided in the ne5t precedin article shall be
imposed upon the public officer or employee !ho shall detain any person for
some leal round and shall fail to deliver such person to the proper ?udicial
authorities !ithin the period of si5 hours. <As amended by Act No. D'-B.=
(he pertinent provisions of our fundamental la! !hich limit the po!ers of the
leislative branch of our overnment in the enactment of la!s are as follo!s7
ART. III. . BILL O- RIG/TS
)EC(>9N &. <&= No person shall be deprived of life, liberty, or property !ithout
due process of la!, nor shall any person be denied the e3ual protection of the
la!s.
5 5 5 5 5 5 5 5 5
<&.= No person shall be held to ans!er for a criminal offense !ithout due process
of la!.
5 5 5 5 5 5 5 5 5
<&E= >n all criminal prosecutions the accused shall be presumed to be innocent
until the contrary is proved, and shall en?oy the riht to be heard by himself and
counsel, to be informed of the nature and cause of the accusation aainst him, to
have a speedy and public trial, to meet the !itnesses face to face, and to have
compulsory process to secure the attendance of !itnesses in his behalf.
&evelopment of te &octrine of &ue Process of .a!.
(houh the !ords 0due process of la!0 have not a lon history, the doctrine
implied by them has a history in Anlo8American la! !hich e5tends for more than
seven hundred years @ bac;, indeed, to the sinin of Mana Charta. And yet,
not!ithstandin this lon period durin !hich countless opportunities have
presented themselves for its application and ?udicial definition, the doctrine has
not yet received a statement in such a form that its specific applications can, in all
cases, be determined. (his failure has been due, not to any lac; of ?udicial effort
or acumen, but to the very nature of the doctrine !hich, assertin a fundamental
principle of ?ustice rather than a specific rule of la!, is not susceptible of more
than eneral statement. (he result is, that the meanin of the phrase has to be
souht in the history of its specific applications, and, as the variety of these
possible applications is infinite, it !ill probably never be possible to say that the
full content of that meanin has been determined. >n (!inin vs. Ne! 1ersey <$&&
/.)., E#=, !e find the court sayin7 0+e! phrases in the la! are so elusive of
e5act apprehension as this. (his court has al!ays declined to ive a
comprehensive definition of it, and has preferred that its full meanin should be
radually ascertained by the process of inclusion and e5clusion in the course of
the decisions of cases as they arise.0 )o also in 2avidson vs. Ne! 9rleans <'"
/.)., 'E=, the court said7 0to define !hat it is for a state to deprive a person of
life, liberty or property !ithout due process of la!, in terms !hich !ould cover
every e5ercise of po!er thus forbidden to the state, and e5clude those !hich are
not, no more useful construction could be furnished by this or any other court to
any part of the fundamental la!.0 And, later in the same opinion7 0(here is
!isdom in the ascertainin of the intent and application of such an important
phrase in the +ederal Constitution by the radual process of ?udicial inclusion and
e5clusion as the cases presented for decision shall re3uire, !ith the reasonin on
!hich such discussions may be founded.0
>n 4olden vs. 4ardy <&"' /.)., D""= the court said7 0(his court has never
attempted to define !ith precision the !ords 0due process of la!.0 >t is sufficient
to say that there are certain immutable principles of ?ustice !hich inhere in the
very idea of free overnment !hich no member of the /nion may disreard.0
>t !ould appear, then, that a complete ;no!lede of the meanin of the doctrine
of due process of la! in American constitutional ?urisprudence can be obtained
only by a study of every case in !hich its application has been souht. . . .
Per .e*em /errae.
(he historical antecedents of the phrase 0due process of la!0 may be clearly
traced bac; to the e5pression per leem terrae as it occurs in the Charter !run
by the Barons from Iin 1ohn. (he D'th chapter of that document provides that
0no freeman shall be ta;en, or imprisoned, or dissei,ed, or outla!ed, or e5iled, or
in any !ay destroyed6 nor shall !e o upon him nor send upon him, but by the
la!ful ?udment of his peers or by the la! of the land0 <per le*em terrae=. >n the
later re8issues and reaffirmations of this charter by 4enry >>>, in &$&", &$&E and
&$$., this provision !as repeated, !ith, ho!ever, in the issues of &$&E and &$$.,
the addition of the !ords after dissei,ed, 0of his freehold, or liberties, or free
customs,0 <de li$era tenemento suo vel li$ertati$us, vel li$eris consuetudini$us
suis=.
(he !ords of Mana Charta, per le*em terrae, probably had at this time the
technical meanin that no civil or criminal plea should be decided aainst a
freeman until he had been iven the opportunity to furnish the customary 0proof0
!hich the la!, as it then stood, reconi,ed and permitted him to offer. (his proof
miht be by battle, or ordeal, or by compuration. Ahatever form it miht
assume it !as technically ;no!n as a la! <le"=, that is, as a test accordin to
!hich the defendant%s claim !as to be upheld or denied. <McIechnie, %a*na
Carta, &B$, --&, --$6 (hayer, +vidence, $BB6 Bielo!, History of Procedure,
&... (hayer and Bielo! are cited by McIechnie.=
>n the various petitions of the Parliament in the +ourteenth Century aainst the
arbitrary acts of the Iin%s Council, the uaranty of the la! of the land !as
appealed to, and these petitions, !hen assented to by the Iin, became, of
course, statutes of the realm. (hus, in &DD&, in )tat. . Ed!. >>>, C. ', it !as
declared that 0no man from henceforth shall be attac;ed by any accusation, nor
fore?uded of life or limb, nor his lands, tenements, oods nor chattels sei,ed into
the Iin%s hands aainst the form of the *reat Charter and the la! of the land.0
)o aain, in &D.&, in )tat. $., Ed!. >>>, C. -, it !as declared that 0from
henceforth none shall be ta;en by petition or suestion made to our lord the
Iin or his Council, unless it be by presentment or indictment of his ood and
la!ful people of the same neihborhood, !here such deeds be done, in due
manner, or by process made by !rit oriinal at the common la!, nor that none be
ousted of his franchises, nor of his household, unless he be fully brouht in to
ans!er and fore?uded of the same by the courts of the la!.0 )till aain, in &D..,
in )tat. $#, Ed!. >>>, C. D, there !as a substantially similar provision, and there,
for !hat !ould appear to be the first time, !e have the modern phrase employed.
0No man,0 it !as declared, 0of !hat state or condition so ever he be, shall be put
out of his lands, or tenements, nor ta;en, nor imprisoned, nor indicted, nor put to
death, !ithout he be brouht in to ans!er by due process of la!.0 <Par due
process de lei.= <Cf. Mc*ehee, &ue Process of .a!, Chap. >.=
>t is thus apparent that in these petitions and statutes of Ed!ard >>>, the phrases
0due process of la!0 and 0the la! of the land0 had come to be synonymous, both
indicatin, as the substance of the petitions sho!s, that the uaranty insisted
upon !as that persons should not be imprisoned e5cept upon due indictment, or
!ithout an opportunity on their parts to test the leality of their arrest and
detention, and that their property should not be ta;en e5cept in proceedins
conducted in due form in !hich fair opportunity !as offered to the one claimin
o!nership or riht to possession to appear and sho! cause, if any, !hy the
sei,ure should not be made.
(he Petition of Riht of &"$#, approved by Charles >, recited various arbitrary acts
complained of, and appealed to 0the la!s and franchises of the realm.0 Co;e, in
his )econd >nstitute, defined the phrase per le*em terrae as meanin 0the
common la!, statute la! or custom of Enland,0 and then declared7 0+or the true
sense and e5position of these !ords, see the )tatute DE, Ed!. >>>, C. #, !here
the !ords 0by the la! of the land0 are rendered 0!ithout due process of la!0, for
there it is said, thouh it be contained in the *reat Charter, that no man be
ta;en, imprisoned, or put out of his freehold !ithout due process of la!6 that is
by indictment or presentment of ood and la!ful men !here such deeds be done
or by !rit oriinal of the common la!.
>t !as in this sense as employed in the statutes of Ed!ard >>> and by Co;e, and
as relatin solely to matters of procedure, that the phrase due process of la! !as
introduced into, American la!. <D Aillouhby on the Constitution of the /nited
)tates, $d ed., sections &&&D, &&&-, pp. &"#., &"##,=
+n*lis and American 0se of te Prase 1&ue Process of .a!1 Contrasted.
Comin no! to American practice !e find that the e5act phrase 0due process of
la!0 !as not employed in any of the eleven )tate constitutions adopted prior to
the +ederal Constitution, but that it early found e5pression in substance, if not in
very !ords, in those instruments. (he very !ords do, ho!ever, appear in the
2eclaration of Rihts of the )tate of Ne! Cor;, adopted in &EEE, and in one of the
amendments proposed by that )tate to the +ederal Constitution as drafted by the
convention of &E#E. (he first appearance of the e5press provision in an American
instrument of overnment is in the +ifth Article of Amendment to the Constitution
of the /nited )tates, adopted in &E'&. (hat amendment provides, inter alia, that
0nor shall any person . . . be deprived of life, liberty or property, !ithout due
process of la!.0 (he +ederal imposition of this re3uirement upon the )tates did
not come until &#"# !hen the +ourteenth Amendment !as ratified.
>t is a very remar;able fact that not until our !ritten Constitution !as more than
half a century old did the phrase receive an interpretation and application !hich
appro5imates that !hich it has today, and not, indeed, until a hundred years had
passed a!ay !as resort had to it as the usual device of those disapprovin of the
acts of their leislatures. (his, ho!ever, is no doubt in a measure e5plainable by
the fact that not until the increased comple5ity of social and industrial life had
led, upon the one hand, to the use by the )tate and +ederal *overnments of
administrative process more or less summary in character and, upon the other
hand, to a mar;ed increase in the reulative control of la! over private acts and
the use of public property, did there appear the necessity for the appeal to this
limitation by those !ho conceived themselves in?ured by the e5ercise of such
administrative po!ers or by the enforcement of these leislative reulations.
>n t!o most important respects the application in America of the re3uirement of
due process of la! has differed from that !hich it had received in Enland prior to
&EE", and !hich, indeed, it still receives in that country. (hese are7 <&= that, in
the /nited )tates, it operates as a limitation upon the leislative as !ell as upon
the e5ecutive branch of the overnment, and <$= that it relates to substantive as
!ell as to procedural rihts. (his second application is, ho!ever, one !hich, as !e
shall see, !as not at first developed.
Before the re3uirement could be reconi,ed as one upon the leislature there had
first to be established the doctrine that the courts, !hen called upon to apply the
enactments of the la!ma;in branch of the overnment of !hich they themselves
constitute the ?udiciary, may declare the invalidity of enactments !hich, in their
?udment, conflict !ith the provisions of the !ritten Constitution. (his doctrine, as
is !ell ;no!n, !as not accepted !ithout protest, but may be said to have
received final and decisive sanction as a fundamental principle of American
constitutional ?urisprudence in the reat opinion of Marshall, rendered in &#BD, in
the case of Marbury vs. Madison <& Cr., &DE=.
(hat, as contrasted !ith Enlish practice, the re3uirement of due process of la!
!as a limitation upon the leislative po!er, so far, at least, as to render void an
enactment authori,in a ta;in of life, liberty or property by an arbitrary or
other!ise defective procedure, seems early to have been held, the arument
bein founded upon the obvious fact that, as contrasted !ith the Enlish
constitutional documents, American !ritten instruments of overnment and their
accompanyin Bills of Rihts have for their primary aim the delimitation of the
po!ers of all the departments of overnment, @ of the leislative as !ell as the
e5ecutive and ?udicial. <D Aillouhby, $d ed., section &&&., pp. &"#', &"'B.=
(he possibility, under a popular form of overnment, of oppression in the form of
la!s enacted by their o!n representatives, does not appear to have been ;eenly
felt by the people. )o far, ho!ever, as it !as apprehended, the early vie! seems
to have been that the restraints of natural la! !ould be operative, accordin to
the doctrine that the la!8ma;in branch of every overnment is inherently
!ithout the po!er arbitrarily and oppressively to invade the sphere of private
rihts of persons and property. (his natural la! doctrine, thouh it can never be
said to have ained a definite establishment, even for a time, nevertheless
received fre3uent obiter assertion, and its influence !as for a lon time seen in
discussions of our hiher courts. (hus, for e5ample, in &#E., in Loan Association
vs. (ope;a the court said7 0>t must be conceded that there are such rihts in
every free overnment beyond the control of the state, @ a overnment !hich
reconi,ed no such rihts, !hich held the lives, the liberty and the property of its
citi,ens sub?ect at all times to the absolute disposition and unlimited control of
even the most democratic depository of po!er is, after all, but a despotism .. (he
theory of our overnments, state and municipal, is opposed to the deposit of
unlimited po!er any!here. (he e5ecutive, the leislative and the ?udicial
branches of these overnments are all of limited and defined po!ers. (here are
limitations on such po!er !hich ro! out of the essential nature of all free
overnments @ implied reservations of individual rihts, !ithout !hich the social
compact could not e5ist, and !hich are respected by all overnments entitled to
the name. No court, for instance, !ould hesitate to declare void a statute !hich
enacted that A And B !ho !ere husband and !ife to each other should be no
loner, but that A should thereafter be the husband of C, and B the !ife of 2, or
!hich should enact that the homestead no! o!ned by A should henceforth be the
property of B.0 D Aillouhby, /nited )tates Constitutional La!, section &&&", pp.
&"'$, &"'D.=
(here are certain eneral principles, !ell settled, ho!ever, !hich narro! the field
of discussion, and may serve as helps to correct conclusions. (hese principles
ro! out of the proposition universally accepted by American courts on the
authority of Co;e, that the !ords 0due process of la!0 are e3uivalent in meanin
to the !ords 0la! of the land,0 contained in that chapter of %a*na Carta !hich
provides that 0no freeman shall be ta;en, or imprisoned, dissei,ed, or outla!ed,
or e5iled, or any !ise destroyed6 nor shall !e o upon him, nor send upon him,
but by la!ful ?udment of his peers, or by the la! of the land.0
>n 4aar vs. Reclamation 2ist. it !as said7 0>t is sufficient to say that by due
process of la! is meant one !hich, follo!in the forms of la!, is appropriate to
the case and ?ust to the parties to be affected. >t must be pursued in the ordinary
mode prescribed by the la!, it must be adapted to the end to be attained, and
!henever it is necessary for the protection of the parties, it must ive them an
opportunity to be heard respectin the ?ustness of the ?udment souht. (he
clause, therefore, means that there can be no proceedin aainst life, liberty, or
property !hich may result in deprivation of either, !ithout the observance of
those eneral rules established in our system of ?urisprudence for the security of
private rihts.0
0By the la! of the land,0 said Aebster in a much 3uoted pararaph, 0is most
clearly intended the eneral la! !hich hears before it condemns6 !hich proceeds
upon in3uiry and renders ?udment only after trial. (he meanin is that every
citi,en shall hold his life, liberty and property and immunities under the protection
of eneral rules !hich overn society. Everythin !hich may pass under the form
of an enactment is not la! of the land.0 <D Aillouhby, $d ed., pp. &EB#, &EB'.=
(he fact that the re3uirement as to due process includes, to a very considerable
e5tent at least, the uarantee of e3ual protection of the la!s, is especially sho!n
in the opinion of the court in )myth vs. Ames !here it is said7 0(he e3ual
protection of the la!s, !hich by the +ourteenth Amendment no )tate can deny to
the individual, forbids leislation, in !hatever form it may be enacted, by !hich
the property of an individual is, !ithout compensation, !rested from him for the
benefit of another, or of the public.0
(he possible distinction bet!een the t!o prohibitions !e find touched upon by
Chief 1ustice (aft in his opinion in (rua5 vs. Corrian. 4e there said7 0>t may be
that they <the t!o prohibitions= overlap, that a violation of one may involve at
times the violation of the other, but the spheres of the protection they offer are
not conterminous. . . . (he due process clause . . . of course tends to secure
e3uality of la! in the sense that it ma;es a re3uired minimum of protection for
everyone%s riht of life, liberty, and property, !hich the Conress of the leislature
may not !ithhold. 9ur !hole system of la! is predicated on the eneral
fundamental principle of e3uality of application of the la!. . . . But the farmers
and adopters of this <+ourteenth= Amendment !ere not content to depend on a
mere minimum secured by the due process clause, or upon the spirit of e3uality
!hich miht not be insisted on by local public opinion. (hey therefore embodied
that spirit in a specific uaranty. (he uaranty !as aimed at undue favor and
individual or class privilee, on the one hand, and at hostile discrimination or the
oppression of ine3uality, on the other. >t souht an e3uality of treatment of all
persons, even thouh all en?oyed the protection of due process.0 (hus, in the
instant case, the Chief 1ustice pointed out that the )tate statute under
e5amination !hich prohibited interference by in?unctions in disputes bet!een
employers and employees concernin terms or conditions of employment resulted
in the reconition of one set of actions aainst ordinary tort feasors and another
set aainst tort feasors in labor disputes. (he contention that no one has a vested
riht to in?unctive relief, he said, did not meet the ob?ection that the rantin of
e3uitable relief to one man or set of men, and denyin it to others under li;e
circumstances and in the same ?urisdiction !as a denial of the e3ual protection of
the la!s.
>n 4ayes vs. Missouri the court said of the +ourteenth Amendment that it 0does
not prohibit leislation !hich is limited either in the ob?ects to !hich it is directed
or by the territory !ithin !hich it is to operate. >t merely re3uires that all persons
sub?ect to such leislation shall be treated ali;e, under li;e circumstances and
conditions both in the privilees conferred and in the liabilities imposed.0 4avin
3uoted this statement, Chief 1ustice (aft in (rua5 vs. Corrian added7 0>ndeed,
protection is not protection unless it does so. >mmunity ranted to a class,
ho!ever limited, havin the effect to deprive another class, ho!ever limited, of a
personal or property riht, is ?ust clearly a denial of e3ual protection of the la!s
to the latter class as if the immunity !ere in favor of, or the deprivation of riht
permitted !or;ed aainst, a larer class.0
+rom !hat has been said it is clear that, in many cases, la!s !hich have been
held invalid as denyin due process of la! miht also have been so held as
denyin e3ual protection of the la!s, or vice versa, and that, in fact, in not a fe!
cases the courts have referred to both prohibitions leavin it uncertain !hich
prohibition !as deemed the most pertinent and potent in the premises. 09ne of
the best eneral statements of the scope and intent of the provision for the e3ual
protection of the la!s is that iven by 1ustice +ield in his opinion in Barbier vs.
Connolly, in !hich, spea;in for the court, he said7
0(he +ourteenth Amendment in declarin that no )tate 0shall deprive any person
of life, liberty or property !ithout due process of la!, nor deny to any person
!ithin its ?urisdiction the e3ual protection of the la!s,0 undoubtedly intended, not
only that there should be no arbitrary deprivation of life or liberty or arbitrary
spoliation of property but that e3ual protection and security should be iven to all
under li;e circumstances in the en?oyment of their personal and civil rihts6 that
all persons should be e3ually entitled to pursue their happiness and ac3uire and
en?oy property6 that they should have li;e access to the courts of the country for
the protection of their persons and property, the prevention and redress of
!rons, and the enforcement of contracts6 that no impediment should be
interposed to the pursuits by anyone e5cept as applied to the same pursuits by
others under li;e circumstances6 that no reater burdens should be laid upon one
than are laid upon others in the same callin and condition, and that in the
administration of criminal ?ustice no different or hiher punishment should be
imposed upon one that such as is prescribed to all for li;e offenses.0 <D
Aillouhby $d ed., pp. &'$#, &'DB.=
(he leislature may suspend the operation of the eneral la!s of the )tate, but
!hen it does so the suspension must be eneral, and cannot be made for
individual cases or for particular localities. Privilees may be ranted to particular
individuals !hen by so doin the rihts of others are not interferred !ith6
disabilities may be removed6 the leislature as parens patriae, !hen not
forbidden, may rant authority to the uardians or trustees of incompetent
persons to e5ercise a statutory control over their states for their assistance,
comfort, or support, or for the dischare of leal or e3uitable liens upon their
property6 but every one has a riht to demand that he be overned by eneral
rules, and a special statute !hich, !ithout his consent, sinles his case out as one
to be reulated by a different la! from that !hich is applied in all similar cases,
!ould not be leitimate leislation, but !ould be such an arbitrary mandate as is
not !ithin the province of free overnments. (hose ma;e the la!s 0are to overn
by promulated, established la!s, not to be varied in particular cases, but to have
one rule for rich and poor, for the favorite at court and the countryman at
plouh.0 (his is a ma5im in constitutional la!, and by it !e may test the authority
and bindin force of leislative enactments. <Cooley%s Constitutional Limitations,
Eth ed., pp. ..#, ..'.=
E3uality of rihts, privilees, and capacities un3uestionably should be the aim of
the la!6 and if special privilees are ranted, or special burdens or restrictions
imposed in any case, it must be presumed that the leislature desined to depart
as little as possible from this fundamental ma5im of overnment.
(he )tate, it is to be presumed, has no favors to besto!, and desins to inflict no
arbitrary deprivation of rihts. )pecial privilees are al!ays obno5ious, and
discriminations aainst persons or classes are still more so6 and, as a rule of
construction, it is to be presumed they !ere probably not contemplated or
desined. <Cooley%s Constitutional Limitations, Eth ed., pp. ."$, ."D.=
>t is usual for state constitutions and statutes to provide for the accused a speedy
and public trial. By a speedy trial is meant one that can be had as soon after
indictment as the prosecution can !ith reasonable dilience prepare for, reard
bein had to the terms of court6 a trial conducted accordin to fi5ed rules,
reulations, and proceedins of la!, free from ve5atious, capricious, and
oppressive delays. (he term 0speedy0 as thus used, bein a !ord of
indeterminate meanin, permits leislative definition to some e5tent6 and the
authorities uniformly hold that such statutes are enacted for the purpose of
enforcin the constitutional riht, and that they constitute a leislative
construction or definition of the constitutional provision, and must be construed
fairly to the accomplishment of that end. Any act of the leislature !hich infrines
the constitutional provision is necessarily nuatory. <&" C. 1., pp. -D', --B.=
1/e purpose of te statute <&= is to prevent continued incarceration !ithout
opportunity to the accused, !ithin a reasonable time, to meet the proofs upon
!hich the chare is based.0 <)tate vs. Miller, E$ Aash., &.-, &.', &"D6 &$' P.,
&&-B.= <$= 0(he constitutional privilee of a speedy trial !as intended to prevent
an arbitrary, indefinite imprisonment, !ithout any opportunity to the accused to
face his accusers in a public trial. >t !as never intended as furnishin a technical
means for escapin trial.0 <)tate vs. Miller, supra.= <D= 0(he sole ob?ect and
purpose of all the la!s from first to last, !as to ensure the speedy trial to the
accused, and to uard aainst the a protracted imprisonment or harrassment by a
criminal prosecution, an ob?ect but little if any less interestin to the public than
to him.0 <Com. vs. Adcoc;, # *rat. F-' Ha.G, ""&, "#B.= <Juote 2enham vs.
Robinson, E$ A. Ha. $-D, $..6 EE ). E., 'EB6 -. L.R.A., N.)., &&$D6 Ann. Cas.
&'&.2, ''E.= <See also +" parte )antee <$ Ha. Cas. F- Ha.G, D"D, D".= <!here the
court said7 that !hilst it has an eye to the solemn duty of protectin the public
aainst the !rons of those !ho are reardless of their obliations to society, and
to the delays !hich the Common!ealth may unavoidably encounter in
prosecutin breaches of these obliations, it is studious to shield the accused
from conse3uences of the laches of those to !hom the duty of conductin the
prosecution may have been assined. (he public has rihts as !ell as the
accused, and one of the first of these is, that of redressin, or punishin their
!rons. >t !ould not seem reasonable that this riht, so necessary for the
preservation of society, should be forfeited !ithout its default=.
0(his provision of our constitutions must receive a reasonable interpretation. >t
can not be held to mean that in all the possible vicissitudes of human affairs, a
person !ho is accused of a crime shall have a speedy and public trial in due form
of la!, because there may be times !hen the civil administration !ill be
suspended by the force of uncontrollable circumstances. (his constitutional
provision !as adopted upon eneral considerations ro!in out of the e5perience
of past times, and !as intended to prevent the overnment from oppressin the
citi,en by holdin criminal prosecutions suspended over him for an indefinite
time6 and it !as also intended to prevent delays in the customary administration
of ?ustice, by imposin upon the ?udicial tribunals an obliation to proceed !ith
reasonable dispatch in the trial of criminal accusations.0 <+" parte (urman, $"
(e5., EB#, E&B6 #- Am. 2., .'#.=. <&" C.1., --B, footnote.=
>n any criminal case, the person accused may not be deprived of life, liberty, or
property e5cept by due process of la!, even thouh he is uilty. (he la! by !hich
the 3uestion of due process is determined is the la! of the ?urisdiction !here the
offense !as committed and the trial is had.
2ue process of la! in a criminal case re3uires a la! creatin or definin the
offense, a court of competent ?urisdiction, accusation in due form, notice and
opportunity to defend, trial before an impartial ?ude or ?ude and ?ury accordin
to established criminal procedure, and a riht to be dischared unless found
uilty. . . .
Ahile the freedom of the state and federal overnments to control and reulate
the procedure of their courts for the prosecution of criminal offenses is limited by
the re3uirement of the process of la!, and the procedure must not !or; a denial
of fundamental rihts of accused included !ithin the conception of due process,
no particular form or method of procedure in criminal cases is re3uired by the
uaranty of due process so lon accused as accused has due and sufficient notice
of the chare or accusation and an ade3uate opportunity to be heard in defense.
<&" C.1.)., pp. &&E&8&&ED.=
An emer*ency e"istin* does not increase constitutional po!er or diminish
constitutional restrictions6 hence !hile emerency leislation may temporarily
limit available remedies, it does not contemplate the permanent denial of due
process. <&" C.1. )., p. &&.E.=
Althouh a la! is fair on its face and impartial in appearance, yet, if it is applied
and administered !ith an evil eye and une3ual hand, so as to ma;e un?ust and
illeal discrimination, it is !ithin the prohibition of the +ederal Constitution. <Chy
Lun vs. +reeman, '$ /.)., $E.6 $D La!, ed., ..B.=
(he action of a state throuh its officers chared !ith the administration of a la!
fair in appearance may be of such a character as to constitute a denial of the
e3ual protection of the la!s. <Bailey vs. Alabama, $&' /.)., $&'6 D& )up. Ct.
Rep., &-.6 .. La!. ed., &'&.=
(he clause 0due process of la!0 means that there can be no proceedin aainst
life, liberty or property !hich may result in the deprivation of either, !ithout the
observance of those eneral rules established in our system of ?urisprudence for
the security of private rihts. <(urpin vs. Lemon, &#E /.)., .&6 $D )up. Ct. Rep.,
$B6 -E La!. ed., EB.=
CRIMINAL ACCUSATIONS
Perhaps the most important of the protections to personal liberty consist in the
mode of trial !hich is secured to every person accused of crime. At the common
la!, accusations of felony !ere made in the form of an indictment by a rand
?ury6 and this process is still retained in many of the )tates, !hile others have
substituted in its stead an information filed by the prosecutin officer of the )tate
or country. (he mode of investiatin the facts, ho!ever, is the same in all6 and
this throuh a trial by ?ury, surrounded by certain safeuards !hich are a !ell
understood part of the system, and !hich the overnment cannot dispense !ith.
+irst, !e may mention that the humanity of our la! al!ays presumes an accused
party innocent until he is proved to be uilty. (his is a presumption !hich attends
all the proceedins aainst him, from their initiation until they result in a verdict,
!hich either finds the party uilty or converts the presumption of innocence into
an ad?uded fact.
>f there !ere any mode short of confinement !hich !ould, !ith reasonable
certainty, insure the attendance of the accused to ans!er the accusation, it !ould
not be ?ustifiable to inflict upon him that indinity, !hen the effect is to sub?ect
him, in a reater or less deree, to the punishment of a uilty person, !hile as
yet it is not determined that he has committed any crime. >f the punishment on
conviction cannot e5ceed in severity the forfeiture of a lare sum of money, then
it is reasonable to suppose that such a sum of money, or an areement by
responsible parties to pay it to the overnment in case the accused should fail to
appear, !ould be sufficient security for his attendance6 and therefore, at the
common la!, it !as customary to ta;e security of this character in all cases of
misdemeanor6 one or more friends of the accused underta;in for his appearance
for trial, and areein that a certain sum of money should be levied of their oods
and chattels, lands and tenements, if he made default. . . . (he presumption of
innocence is an absolute protection aainst conviction and punishment, e5cept
either, first on confession in open court6 or, second, on proof !hich places the
uilt beyond any reasonable doubt. +ormerly, if a prisoner arrained for felony
stood mute !ilfully, and refused to plead, a terrible mode !as resorted to for the
purpose of compellin him to do so6 and this miht even end in his death6 but a
more merciful proceedin is no! substituted6 the court enterin a plea of not
uilty for a party !ho, for any reason, fails to plead for himself.
Aain, it is re3uired that the trial be speedy6 and here also the in?unction is
addressed to the sense of ?ustice and sound ?udment of the court. >n this
country, !here officers are specially appointed or elected to represent the people
in these prosecutions, their position ives them an immense po!er for
oppression6 and it is so to be feared they do not al!ays sufficiently appreciate the
responsibility, and !ield the po!er !ith due reard to the leal rihts and
privilees of the accused. Ahen a person chared !ith crime is !illin to proceed
at once to trial, no delay on the part of the prosecution is reasonable, e5cept only
that !hich is necessary for proper preparation and to secure the attendance of
!itnesses. Hery much, ho!ever, must be left to the ?udment of the prosecutin
officer in these cases6 and the court !ould not compel the overnment to proceed
to trial at the first term after indictment found or information filed, if the officer
!ho represents it should state, under the responsibility of his official oath, that he
!as not and could not be ready at that time. But further delay !ould not
enerally be allo!ed !ithout a more specific sho!in of the causes !hich prevent
the )tate proceedin to trial, includin the names of the !itnesses, the steps
ta;en to procure them, and the facts e5pected to be proved by them, in order
that the court miht ?ude of the reasonableness of the application, and that the
prisoner, miht, if he sa! fit to ta;e that course, secure an immediate trial by
admittin that the !itnesses, if present, !ould testify to the facts !hich the
prosecution have claimed could be proven by them. <Cooley%s Constitutional
Limitations, Eth ed., pp. -D"8--&.=
)ection &' of our Bill of Rihts provides that 0no citi,en of this state shall be
deprived of life, liberty, property, privilees or immunities, or in any manner
disfranchised, e5cept by the due course of the la! of the land.0
0La! of the land0 is interpreted to mean a eneral public la!, operatin e3ually
upon every member of the community. <Re 1il,, D Mo. App., $-".=
0No state shall . . . deny to any person !ithin its ?urisdiction the e3ual protection
of the la!s60 0nor shall any state deprive any person of life, liberty, or property
!ithout due process of la!.0 . . . /.). Constitution, section &, article &-.
2ue process of la! under the &-th Amendment and the e3ual protection of the
la! are secured if the la! operates on all ali;e and does not sub?ect the individual
to the arbitrary e5ercise of the po!ers of overnment. <2uncan vs. Missouri, &.$
/.)., D#$6 D# La!. ed. -#E6 &- )up. Ct. Rep., .EB6 4urtado vs. California, &&B
/.)., .D.6 $# La!. ed., $D$6 - )up. Ct. Rep., &&&, $'$.=
2o la!s operate e3ually upon the citi,ens of the Common!ealth of (e5as !hich
!ill imprison under li;e verdicts one man for a month and another for si5 monthsK
Manifestly not.
)ection D of the Bill of Rihts to the )tate Constitution provides7 0All freemen,
!hen they form a social compact, have e3ual rihts.0
A la! !hich ma;es different punishments follo! the same identical criminal acts
in the different political subdivisions of (e5as violates both our state and +ederal
Constitutions. >t fails to accord e3ual rihts and e3ual protection of the la!, and a
conviction under it is not in due course of the 0la! of the land.0 Re 1il, <D Mo.
App., $-"=6 Re 4.+. Millon <&" >daho, EDE6 $$ L.R.A. FN.).G, &&$D6 &B$ Pac., DE-=,
and 1ac;son vs. )tate <.. (e5. Crim. Rep., ..E6 &&E ).A., #&#=, are cited in
support of our vie! in their reasonin.
Ae thin; the principles announced in the case of +" parte 1ones <&B" (e5. Crim.
Rep., &#.6 $'B ).A., &EE=, apply in some deree to the instant case. >t !as there
held that article E'D, Code Crim. Proc., superseded and controlled an ordinance of
the city of 2allas !hich allo!ed only .B cents per day to be credited upon the fine
of a convict for labor performed. Provisions similar to those 3uoted in our state
constitution have been a part of Anlo8)a5on ?urisprudence since there !as
!run from the un!illin hands of Iin 1ohn at Runnymede in &$&. the Mana
Charta, !hich itself provides that a freeman shall not be passed upon or
condemned but 0by the la!ful ?udment of his peers and the la! of the land.0
0La! of the land0 has the same leal meanin as 0due process of la!,0 and one of
its accepted meanins is that 3uoted above. Re 1il,, D Mo. App., $-D6 D Aords L
Phrases, pp. $$$E8$$D$. <+" parte )i,emore, .' A.L.R., Annotated, pp. -DB,
-D$.=
And in Re 1il, <F&#EEG=, D Mo. App., $-D=, an act of the leislature of Missouri,
!hich, by limitin the po!er of a court established in a certain county to assess
punishments, varied the penalties for crimes committed therein from those fi5ed
by the eneral la! for the !hole state, !as held to be unconstitutional in so far as
it had that effect, the court sayin7 0A la! !hich should prescribe death as the
punishment of murder in one county, and imprisonment as the penalty for the
same crime in other parts of the state, !ould be void, because not operatin
e3ually upon all inhabitants of the state. (he eneral la! applicable to the state
prescribes, as the punishment for the offense for !hich the petitioner !as
convicted, imprisonment in the county ?ail not e5ceedin one year, or fine not
e5ceedin M.BB, or both such fine imprisonment. . . . A la! prescribin a different
punishment from this in )t. Louis county is clearly unconstitutional. >t follo!s that
so much of the act referred to, establishin the court of criminal correction, as
limits the punishment for this misdemeanor in )t. Louis county to imprisonment
for si5 months, is void.0
)o, in )tate vs. Buchardt <Mo.= supra, !here the same leislative act !as in
3uestion, the court says7 0/nder our Constitution, it is not permissible to punish
the same offense or violation of some public or eneral la! by one species of
punishment in one locality, and by a different or more heavy punishment in other
localities in the state. A la! inflictin such different penalties for the perpetration
of any iven crime cannot bear the test of ?udicial e5amination.0
And, in )tate vs. *reori <F&'$#G, @ Mo @ , $ ).A. F$dG, E-E=, an act of the
leislature !hich made children seventeen years of ae in counties of .B,BBB
population or more sub?ect to the ?uvenile court act, !hile in counties of less than
.B,BBB population children seventeen years of ae !ere not sub?ect to the
?uvenile court act, but !ere sub?ect to full criminal responsibility, !as held
unconstitutional as denyin e3ual protection of the la!s6 the court statin that it
!as the eneral doctrine that the la! relative to those !ho miht be chared !ith
and convicted of crime, as !ell as to the punishment to be inflicted therefor,
should operate e3ually upon every citi,en or inhabitant of the state.
And, in )tate vs. +o!ler <F&'$EG, &'D N.C., $'B6 &D" ).E., EB'=, an act of the
North Carolina leislature, applicable to five counties of the state only, !hich
imposed as punishment for a specified offense a fine only, !hile a statute
applicable to the !hole state imposed a fine or imprisonment, !as held to be
unconstitutional under both the +ederal and )tate Constitutions as a denial of the
e3ual protection of the la!s. (he court says7 0But the statute under consideration
cannot be sustained on the round that it !as enacted in the e5ercise of the
police po!er. (he 3uestion is !hether it shall supersede 0the la! of land0 @ the
eneral public la! !hich !as desined to operate !ithout e5ception or partiality
throuhout the state. >t is needful to remember that indictment !as drafted
under the eneral la!, and that the decisive 3uestion is !hether offenders in the
five counties referred to may la!fully be e5empted from the punishment
prescribed by the eneral la!6 !hether they shall be sub?ect only to a fine !hen
the offenders in ninety8five other counties may be punished by imprisonment. >n
our ?udment this part of section $ is neither e3ual protection of the la!s nor the
protection of e3ual la!s. . . . >t is the rant of a special e5emption from
punishment or an e5clusive or separate privilee !hich is forbidden by the cited
provision. . . . (he principle of uniformity in the operation of a eneral la!
e5tends to the punishment, and denounces as arbitrary and unreasonable the
imposition in one county of any ;ind of punishment !hich is different from that
!hich is prescribed under the eneral la! to all !ho may be uilty of the same
offense. >t follo!s that the provision limitin the punishment for the first offense
to a fine must be rearded as an arbitrary class distinction !hich cannot be
sustained because forbidden by the fundamental la!, and the ?udment !hich
!as pronounced by authority of the eneral la! must be upheld. <Annotation, .'
A.L.R., Annotated, p. -D-.=
Bills of attainder !ere prohibited to be passed, either by the Conress or by the
leislatures of the several )tates. Attainder, in a strict sense, means an e5tinction
of civil and political rihts and capacities6 and at the common la! it follo!ed, as
of course, on conviction and sentence to death for treason6 and, in reater or less
deree, on conviction and sentence for the different classes of felony.
A bill of attainder !as leislative conviction for alleed crime, !ith ?udment of
death. )uch convictions have not been uncommon under other overnments, and
the po!er to pass these bills has been e5ercised by the Parliament of Enland at
some periods in its history, under the most oppressive and un?ustifiable
circumstances, reatly aravated by an arbitrary course of procedure, !hich had
fe! of the incidents of a ?udicial investiation into alleed crime. +or some time
before the American Revolution, ho!ever, no one had attempted to defend it as a
leitimate e5ercise of po!er6 and if it !ould be un?ustifiable any!here, there
!ere many reasons !hy it !ould be specially obno5ious under a free overnment,
and !hy conse3uently its prohibition, under the e5istin circumstances of our
country, !ould be a matter of more than ordinary importance. Every one must
concede that a leislative body, from its numbers and orani,ation, and from the
very intimate dependence of its members upon the people, !hich renders them
liable to be peculiarly susceptible to popular clamor, it not properly constituted to
try !ith coolness, caution, and impartiality a criminal chare, especially in those
cases in !hich the popular feelin is stronly e5cited @ the very class of cases
most li;ely to be prosecuted by this mode. And althouh it !ould be conceded
that, if such bills !ere allo!able, they should properly be presented only for
offenses aainst the eneral la!s of the land, and be proceeded !ith on the same
full opportunity for investiation and defense !hich is afforded in the courts of the
common la!, yet it !as remembered that in practice they !ere often resorted to
because an obno5ious person !as not sub?ect to punishment under the eneral
la!, or because, in proceedin aainst him this mode, some rule of the common
la! re3uirin a particular species of deree of evidence miht be evaded, and a
conviction secured on proofs that a ?ury !ould not be suffered to accept as
overcomin the leal presumption of innocence. Ahether the accused should
necessarily be served !ith process6 !hat the deree or species of evidence
should be re3uired6 !hether the rules of la! should be follo!ed, either in
determinin !hat constituted a crime, or in dealin !ith the accused after
conviction @ !ere all 3uestions !hich !ould necessarily address themselves to
the leislative discretion and sense of ?ustice6 and the very 3ualities !hich are
essential in a court to protect individuals on trial before them aainst popular
clamor, or the hate of those in po!ers, !ere precisely those !hich !ere li;ely to
prove !ea; or !antin in the leislative body at such a time. And !hat could be
more obno5ious in a free overnment than the e5ercise of such a po!er by a
popular body, controlled by a mere ma?ority, fresh from the contests of e5citin
elections, and 3uite too apt, under the most favorable circumstances, to suspect
the motives of their adversaries, and to resort to measures of doubtful propriety
to secure party endsK
Nor !ere leislative punishments of this severe character the only ones ;no!n to
parliamentary history6 there !ere others of a milder form, !hich !ere only less
obno5ious in that the conse3uences !ere less terrible. (hese leislative
convictions !hich imposed punishments less than that of death !ere called bills of
pains and penalties, as distinuished from bills of attainder6 but the constitutional
provisions !e have referred to !ere undoubtedly aimed at any and every species
of leislative punishment for criminal or supposed criminal offenses6 and the term
0bill of attainder0 is used in a eneric sense, !hich !ould include bills of pains and
penalties also.
(he thouhtful reader !ill not fail to discover, in the acts of the American )tates
durin the Revolutionary period, sufficient reason for this constitutional provision,
even if the still more monitory history of the Enlish attainders had not been so
freshly remembered. )ome of these acts provided for the forfeiture of the
estates, !ithin the Common!ealth, of those British sub?ects !ho had !ithdra!n
from the ?urisdiction because not satisfied that rievances e5isted sufficiently
serious to ?ustify the last resort of an oppressed people, or because of other
reasons not satisfactory to the e5istin authorities6 and the only investiation
provided for !as an in3uiry into the desertion. 9thers mentioned particular
persons by name, ad?uded them uilty of adherin to the enemies of the )tate,
and proceeded to inflict punishment upon them so far as the presence of property
!ithin the Common!ealth !ould enable the overnment to do so. (hese !ere the
resorts of a time of e5treme peril, and if possible to ?ustify them in a period of
revolution, !hen everythin !as sta;ed on success, and !hen the public safety
!ould not permit too much !eiht to scruples concernin the private rihts of
those !ho !ere not aidin the popular cause, the po!er to repeat such acts
under any conceivable circumstances in !hich the country could be placed aain
!as felt to be too danerous to be felt in the leislative hands. )o far as
proceedins had been completed under those acts before the treaty of &E#D, by
the actual transfer of property, they remained valid and effectual after!ards6 but
so far as they !ere then incomplete, they !ere put an end to by that treaty.
(he conviction of the propriety of this constitutional provision has been so
universal, that it has never been 3uestioned, either in leislative bodies or
else!here. Nevertheless, cases have recently arisen, ro!in out of the attempt
to brea; up and destroy the overnment of the /nited )tates, in !hich the
)upreme Court of the /nited )tates has ad?uded certain actions of Conress to
be in violation of this provision and conse3uently void. (he action referred to !as
desined to e5clude from practice in the /nited )tates courts all persons !ho had
ta;en up arms aainst the overnment durin the recent rebellion, or !ho had
voluntarily iven aid and encouraement to its enemies6 and the mode adopted to
effect the e5clusion !as to re3uire of all persons, before they should be admitted
to the bar or allo!ed to practice, an oath neativin any such disloyal action. (his
decision !as not at first universally accepted as sound6 and the )upreme Courts
of Aest Hirinia and of the 2istrict of Columbia declined to follo! it, insistin that
permission to practice in the courts is not a riht, but a privilee, and that the
!ithholdin it for any reason of )tate policy or personal unfitness could not be
rearded as the infliction of criminal punishment.
(he )upreme Court of the /nited )tates has also, upon the same reasonin, held
a clause in the Constitution of Missouri, !hich, amon other thins, e5cluded all
priests and clerymen from practisin or teachin unless they should first ta;e a
similar oath of loyalty, to be void, overrulin in so doin a decision of the
)upreme Court of that )tate. <Cooley%s Constitutional Limitations, Eth ed., pp.
D"#8DE$.=
(he leal problem confrontin us is characteri,ed by the fact that !e have to
avoid the misleadin effect resultin from the difference bet!een the te5t and
letter of the la! and their rammatical sense and effect on one side, and as it is
interpreted and applied in actual practice.
Apparently, there is nothin so harmless as the provision of section &' of Act No.
"#$, suspendin for a period of not more than si5 months the provision of article
&$. of the Revised Penal Code as amended.
Article &$. of the Revised Penal Code punishes the public officer or employee !ho
0shall detain any person for some leal round and shall fail to deliver such
person to the proper ?udicial authorities !ithin the period of si5 hours.0
)aid article has nothin to sho! that it bears constitutional sanction. >t is only a
part of the penal la!s !hich are !ithin the full ?urisdiction of the leislative po!er
to enact or not to enact. (he Philippine Leislature !hich enacted the Revised
Penal Code could have failed to do so !ithout, by that very fact, violatin any
provision of the Constitution. (he succeedin leislative bodies @ the unicameral
National Assembly and the Conress @ may, !ithout 3uestion, repeal or suspend
article &$. of the Revised Penal Code, as any other article of the same, or even
the !hole code.
(herefore, as an abstract proposition, as a matter of leal technicality, !e believe
that there is absolutely no round for disputin the po!er of the leislative body
to suspend or even repeal article &$. of the Revised Penal Code.
But the provision is vitiated7
<&= By the fact that it is a class leislation, e5cludin the political prisoners
concerned from the same benefits and protection afforded all other persons by
article &$..
<$= By the fact that it is interpreted and applied, not only in a neative sense as a
deterrent aainst public officials or employees bent on encroachin and tramplin
upon the personal freedom of any person, but as a positive authority to said
officers and employees to deprive and continue deprivin the political prisoners
concerned of their personal liberty, !ithout due or any leal process of la!
provided the deprivation of liberty did not e5ceed si5 months, but !ithout
rec;onin the previous many months of illeal detention they had already
suffered before their formal transfer to the Common!ealth *overnment.
+or these t!o radical and incurable defects, section &' of Act No. "#$ runs
counter to the Constitution !hen it prohibits that no person shall be deprived of
his liberty !ithout due process of la! nor shall any person be denied the e3ual
protection of the la!s. <Article >>>, section & F&G, Constitution of the Philippines.=
No one can, !ith candor and fairness, deny the discriminatory character of the
provision. >f all discriminations are abhorrent under any reime of la! and ?ustice,
imperatively more in a democracy such as ours, tribunals must be recreant to
their duties if they fail to deny validity to such an odious leal measure,
conceived, adopted, and unhappily enacted by the leislative po!er in one of its
blunderin moods in utter defiance of the fundamental la! of the land.
Petitioner points out that in the provision there is an unconstitutional deleation
of leislative po!ers, because the po!er to suspend the provision of article &$. of
the Revised Penal Code !ithin the ma5imum period of si5 months, in fact, is
transferred to the )pecial Prosecutors% 9ffice, !hich may shorten or lenthen said
suspension by filin the correspondin criminal information at any time it may
deem convenient.
(he )pecial Prosecutors% 9ffice may not suspend altoether article &$. of the
Revised Penal Code by filin immediately the information. >t may suspend it for
&B days, by filin the information !ithin that time. >t may suspend it for one
month, t!o months, or three months, by filin the information !ithin the desired
time. >t may suspend it for a ma5imum period of si5 months ?ust by mere
inaction, by not filin any information at all. (he result is, in fact, to place in the
hands of the )pecial Prosecutors% 9ffice the po!er to suspend article &$. for any
lenth of time !ithin the ma5imum period of si5 months. And !hat is !orst is
that the suspension that the )pecial Prosecutors% 9ffice may decree is
individuali,ed, and not of eneral effect to all the political prisoners concerned,
thus ma;in the )pecial Prosecutors% 9ffice a ;ind of dictatorship !hich may
dispense its favors and disfavors to individual prisoners under no other test than
its convenience and !hims.
Evidently, petitioner%s complaint is !ell8ta;en, ivin additional round for the
nullity of the provision in 3uestion, the leislative po!er havin been reserved by
the Constitution e5clusively to Conress.
Lastly, the provision in 3uestion appears to leali,e the many months of illeal
detention already endured by the political prisoners concerned. (he leislative
po!er can not leali,e illeal detention, much more if that illeal detention has
been perpetrated in utter violation of the Bill of Rihts of the Constitution.
Petitioner assails the validity of the !hole Act No. "#$, aside from !hat has been
already said about section &' thereof, upon the follo!in rounds7
<&= Because it is an e" post facto la!, violatin section & <&&=, Article >>>, of the
Constitution, petitioner havin been deprived of his ac3uired riht to be freed,
under penalty to his detainers, !ithin si5 hours after his detention under article
&$. of the Revised Penal Code.
<$= Because section $ set up a leal trap by !hich a person, accused in the
information of an offense, may be convicted and sentenced for a different one,
thus violatin his constitutional riht 0to be informed of the nature and cause of
the accusation aainst him.0 <)ection & F&EG, Article >>>, Constitution of the
Philippines.=
<D= Because it creates a special court to try cases arisin years before its
creation, transferrin a ?urisdiction belonin to courts of first instance to the
People%s Court, a blunder identical in nature and viciousness to the former
practice of shufflin ?udes of first instance, the ?udicial ri*odon resorted to before
to suit certain purposes of the overnment and !hich !as stopped by 1ude
Borromeo%s couraeous defense of the independence of the ?udiciary, in a leadin
case before the )upreme Court !hich made history.
<-= Because the creation of the People%s Court is a ?udicial errymanderin.
<.= Because the name 0People%s Court0 suests a political entity, a popular
dispenser of political ?ustice, in contrast !ith the stable, impartial, cultured nature
of a ?udiciary, detached from momentary interests and influences.
<"= Because the self8e5tinuishin character of the People%s Court ma;es it an
aency for special mission, more an aency of the leislature than that of the
administration of ?ustice.
<E= Because it dis3ualifies members of the ?udiciary !ho served under the
1apanese reime.
Ae cannot but reconi,e that strenth of the ob?ections, specially ob?ections <&=,
<$= and <E=.
But !e are not ready to support petitioner%s contention that the !hole act should
be declared null and void, considerin that the unconstitutional provisions thereof
may be sereated and the remainin portions of the te5t may stand on their
o!n feet.
9b?ection <&= adds only another round to sho! the unconstitutionality of the
provision of section &', suspendin article &$. of the Revised Penal Code6 and
ob?ection <$= only affects the correspondin provision of section $ of the act.
9b?ection <E=, upon !hich !e have already e5pressed our opinion in the case of
&e la Rama vs. %isa <-$ off. *a,., &.--=, only affects the provision concernin
the dis3ualification of certain ?ustices of the )upreme Court.
Reardin ob?ections <D=, <-=, <.=, and <"=, althouh they are meritorious, !e
believe that they are offset by the colleiate character of the ne!ly created court.
Ae are inclined to believe that the main purpose in creatin the the People%s
Court !as precisely to afford those !ho !ill be chared and tried before it a
special safeuard, in the fact that more than one ?ude !ill have to hear and try a
case, to counterbalance the prevailin pre?udice in the community aainst the
persons !ho are accused for havin alleedly collaborated !ith the enemy. +or
this reason, !e are of opinion that the act creatin the People%s Court must not be
invalidated.
But it is our hope that its creation !ill not set a precedent that !ill sanction a
!ron principle. *enerally spea;in, the creation of temporary tribunals to
administer ?ustice in specifically pre8determined e5istin cases is contrary to the
nature and character of ?udicial functions and the purposes of the administration
of ?ustice, !hich must be characteri,ed by the independence of ?udicial officers,
independence that cannot be secured !ithout uaranteein the stability of tenure
of office.
1udes are not supposed to decide on !hat may appear riht or !ron in the
evanescent moment !hen the voice of passion ro!s louder in the mar;et of
human activities. (hey must not ma;e decisions in the spur of ne!s that ma;e
screamin headlines and arouse the uncontrollable emotions of political leaders of
the populace. (hey must decide bet!een riht and !ron by the criterion of
universal conscience, by the ?udment, not only of the fleetin instance of
evolvin history, but the unendin caravans of enerations to come.
(he inherent ?ustice of their decisions must continue bein sensed as the
treasured human heritae lon lon after they had rendered their inescapable
tribute to death, li;e the aroma !hich continues enrichin and s!eetenin the air
lon after the flo!ers have been crushed in the chemist%s retorts to ive !ay to
their perfumed essence, li;e the beauty of the temples and palaces of Palmyra
!hich continues charmin our memory millenniums after they have become lust
dusty ruins, li;e the heavenly melodies !hich continue linerin in our ears lon
after !e have heard those musical ems, such as the masterpieces of Bach and
the symphonies of Beethoven, li;e liht emitted by stars !hich ceased to e5ist
centuries ao still travelin in the immensity of space to attract our admiration
and arouse dreams of immortality.
>n order that ?udes could render ?udments of lastin value !hich !ould embody
the !isdom of the aes and the moral sense of all time, it is necessary that they
should preside over tribunals !hich must be loo;ed upon as permanent
institutions of ?ustice, not temporary ma;eshifts, more appropriate to serve
ephemeral purposes than to be the inviolable temples of an eternal oddess. And
the ?udes themselves, to ac3uire the olympic serenity, the a!esome and noble
austerity, the hieratic aloofness, the ma?estic e3uanimity proper of their reat
mission, there bein none reater that can be entrusted to a person as the imae
of *od, must feel, by the permanency, stability, and security of their tenure of
office, that they o!e an undivided loyalty, not to any transient idols or to any
momentary masters, no matter ho! po!erful they are, but to the inseparable
t!in divinities of truth and ?ustice.
1ude Robert N. Ail;in said that the special function of a ?udicial officer is to
determine !hat is riht and !hat is !ron, not only for the clamorous present,
but for silent enerations yet come. +rom him !e 3uote these illuminatin
pararaphs7
(he uidin force in social evolution is not to be found in the arbitrary !ill of
roups, nor in a common purpose. >t is to be found in the la! of our nature, that
imminent or inherent la! founded on the characteristics of human ;ind. 0A la!
instilled and not imposed,0 as Cicero said, 0a la! in !hich !e are fashioned, not
instructed.0 >t is not created by proclamation or leislative fiat. >t is discovered by
patient research and spiritual insiht.
(he true ?ude must have somethin of the vision of a prophet. 4e must be able
to see the trends of his time e5tended, so that principles !hich he announces
may be ad?usted to conditions yet to come. (he observation of *raham Aallas
that a reat ?ude needs a touch of the 3ualities that ma;e a poet has been
3uoted !ith approval by Professor Chafee, 1ustice Cardo,o, and others. Poets, as
has been stated, bear the same relation to society as the antennae of an insect to
its body6 they are 0feelers0 of the body politic. (heir sensibilities are more acute,
more advanced than those of their contemporaries, and !hat they feel and
e5press today their fello!s !ill feel and understand tomorro!. Poets, prophets,
?udes @ they are *ods elect6 !e cannot elect them.
(he reat ?ude cannot be a child of his aes. >f his ?udments are to be reat
they must be timeless, or at least timed to the future. (he spirit of the la! should
enable him to transcend the spirit of his times and he should be able to spea; su$
specie aeternitatis. Ahat a desecration of the office to choose its incumbent by
any system !hich forces him to tempori,eN
1udes in early times !ere priests, or more accurately stated, the priests
performed the functions of ?udes. (here is still much about the ?udicial office that
is priestly. (his has ever seemed 3uite natural to those !ho too; seriously their
first leal learnin from Blac;stone, !ho stated at the outset that all human la!s
depend upon divine la!. Ahile for a time that teachin seemed out of fashion, the
more recent trend is to ac;no!lede aain our sub?ection to a la! of nature, a
la! divine. Be that as it may, it !ill not disputed that a proper performance of
?udicial duties re3uires a devotion 3uite similar to the consecration of the priest.
1udes, li;e the clery, should be ;ept unspotted from the !orld. Any personal
interest, selfish concern, or party consciousness, corrupts not only the ?ude but
the ?udicial function. Any !ant of honest detachment in the ?ude undermines
public faith in ?udicial administration. As has fre3uently been stated, it is 3uite as
important to the public that ?udes should be free from the appearance of evil as
that they should be free from actual evil. (he prevalent disrespect for la! is
prompted not so much by corruption in the courts, as by that system of choosin
?udes !hich ma;es every ?ude suspect.
(he ta;in of ?udicial office should be much li;e the ta;in of holy orders @ one
should not do so !ho is un!illin to suffer a ;ind of civil death. (he only !ay in
!hich one can be !orthy of the office is by submerin self in the performance of
the duties of the office. A ?ude should be only the voice of the la!. As Cicero
said, 0Ahile the la! is voiceless maistrate, the maistrate is la! made vocal.0 >t
is arroant presumption for a ?ude to pose as anythin more, and ross
indiscretion for him to assert his o!n voice. (he only !ay in !hich he can avoid
violation of the in?unction, 01ude not, that ye be not ?uded,0 is by pronouncin,
not his personal !ill, but the ?udment of the la!. 4o! other!ise could a ?ude
impose a death sentence and live in peaceK >f the ?udment is his o!n, the blood
of the condemned is upon him. >f his ?udment is at the behest of popular clamor
he has iven sanction to lynchin. But if his ?udment is the pronouncement of
the la!, the ?udicial function is fulfilled and his conscience is clear. (he ?udicial
robe should submere personality and ma;e its bearer, li;e a priest in vestment,
an impersonal part of a divine function. </e Judicial Function and te )eed of
Professional Section of Jud*es by Robert N. Ail;in, 1ournal of the American
1udicature )ociety, Hol. $', No. -, 2ec., &'-..=
(he facts of current e5perience sho!ed the imperative need of an intellectual
overhaulin as part of the !or; of post8!ar rehabilitation in all orders of our
national life. Many elemental tenets and ideals need be restated, if not
rediscovered. (he !orries and psycholoical shoc;s caused by the 1apanese initial
victories and brutal oppressions concomitant !ith their occupation of our country,
had the effect of !arpin the mentality and sense of moral values of not a
neliible number of persons. (here are men !hose intellectual outloo; and vie!s
of freedom and fundamental human rihts, tethered by defective development of
ideoloy, are not only outmoded, but absolutely incompatible !ith the trends of
the proress, !hose brains appear not to be completely freed from the embryonic
amnion and are in need of allantoic nutrition, !ho !ould rather !ield the
bludeon of ?unle arbitrariness and ma;e a coffle of serfs of free people, than
abide by the constitutional precepts and the noble doctrines of the /N9 Charter,
!hose ?uridical ideas, rather than in the forum of modern democracy, have their
proper place amon the fossils of aptery5, meatheria, and dinosaurs% museum
and, not!ithstandin, are bein haled in apparently responsible sectors of the
press as heroes of proressiveness. )uch nonsense and intellectual travesty are
inconceivable e5cept in a topsy8turvy !orld !hich has adopted the thyrsus as the
choicest emblem of human happiness, !here the fren,ied mental processes have
been inverted as if in the Corinthian order, the frie,e, cornice, and architrave are
place at the foot of the column and above it the stylobate.
Amon the basic concepts that must be included in the !holesale intellectual
overhaulin !hich !e need undero, if !e have to follo! the mental, social, leal,
and moral thread !hich !as cut at the impact of the disastrous invasion of our
soil, is the one !e have on personal liberty, upon !hich the traditional democratic
principles !e had been acceptin and follo!in before the enemy occupation, as
part of the nature of our social and political institutions, appear to have been
forotten, the present case bein one of a series of instances evidencin it, as can
be seen in our opinions in Ra3ui,a vs. Bradford <E. Phil., .B=6 Reyes vs. Crisolo*o
<E. Phil., $$.=6 &uran vs. A$ad Santos <E. Phil., -&B=6 Herras /eean#ee vs.
Rovira <E. Phil., "D-=6 Herras /eean#ee vs. &irector of Prisons p. E.", post6
/a2ada vs. 3uirino <-$ 9ff. *a,., D'-=, the pronouncements in !hich !e are
reiteratin here.
(he moral hiatus in our national life is over, and in this hour of resumption of
democratic processes, there is an imperative need, as one of the cornerstones of
our national structure, to redefine and reaffirmed our pre8!ar concept of human
freedom.
(he petitioner is entitled to be immediately set free, and !e vote for restorin
him to his personal freedom of !hich he !as deprived !ithout any leal process.
-oo$&o$#
&
See Ra3ui,a vs. Bradford <E. Phil., .B=.
$
See " R.C.L., section D"'6 (aOada, Constitution of the Philippines, p. E-6 &"
C.1.)., p. '.- et se,.
D
See &" C.1.)., p. #". et se,.
-
See &" C.1.)., section $$D.
.
Canco vs. Board of Public /tility Commissioners <D" Phil., &$B=.