Volume 36 / Book 2 — Appendix: Judicial Condition of the Philippines in 1842

[In addition to the following account by Mas, the student desirous of pursuing the subject will find much data in the various Guias de Filipinas. Some statistics are also presented by Montero y Vidal (Archipielago Filipino, pp. 194–203) for the years 1883–1884. Much of value and interest will also be found in the various reports of the Philippine Commission, and in the numerous pamphlets issued by the United States Government.]

The royal Audiencia is a court without appeal in Filipinas. The alcaldes-mayor cannot terminate by their own action civil questions that have to do with a sum of greater value than 100 pesos fuertes, or impose any corporal punishment without the approval of the Audiencia, and then only imprisonment for one week. But they are judges of the first instance for every kind of litigious or criminal cases.

In order that one may obtain the post of alcalde-mayor, it is not necessary that he should have studied law. Hence, the greater part of the heads of the provinces are laymen in that respect. Generally those posts are given to military men. Consequently, this is the origin that for every process which is prosecuted in a lawsuit or cause, the alcalde has to have recourse to an assessor, in order to obtain the opinion of that one on which to base his action. But since the advocates reside in Manila, the records have to make at times many trips from the province to the capital. From this results the inconvenience of delay, the liability of theft, or the destruction of the mail. For, in the many rivers that must be crossed, the papers become so wet that they are useless (as happened with several letters of a post which was received in the chief city of a province when I was there, the envelopes of which it was impossible for us to read), and the malicious extraction in order to obscure the course of justice. The defect of this system can only be understood if one reflect that the various provinces of the colony are not situated on a continent, but in various islands, and that by reason of the periodic winds and the hurricanes which prevail in this region, the capital very often finds itself without news of some provinces for two or three months, and of that of Marianas for whole years.

In the same way as this good man talked, the majority talk. The faults and vices of some are attributed and laid to all. It is certain that this system is fatal, for governors of such sort must be essentially interested in turning down the attempt of private speculators, and to frighten away instead the attraction of capital. That has, as a natural consequence, the increased interest on money which so endangers production, and, consequently, exportation and the encouragement of the islands. But not less fatal is the opinion that the authorities of Manila themselves are fed on such abuses. Complaints are continually presented against the alcalde, at times very captious and filled with falsehood and absurdity. The Audiencia and office of the captain-general receive those complaints kindly and very easily dictate measures humiliating for the alcalde, and impose fines on him, of which a copy is given to the complaining parties. Rarely is it that one leaves his alcaldeship without having paid many fines. The Filipinos make the greatest ado, as is natural, over those triumphs against authority, but authority loses decorum and moral force. All this comes from the bad system established, for, since the governor from the moment that he becomes a merchant, must be a bad governor and a usurer and tyrant, the government of Manila is predisposed against his acts, and declares itself the protector of the Filipinos. In this way one evil is remedied by a worse. The supreme authority instead of supporting and sustaining the subordinate government punishes and degrades it. Illusion, respect, and fear vanish. It is believed that that severity against those who rule is advantageous in making our yoke loved, and that the natives will say, “The government is kind for it punishes the alcaldes,” while it would be better for them to say, “The government is kind because it gives us good alcaldes.”

Shortly after my arrival in the islands, being at the feast of Cavite, distant four hours from the capital, I wished to go thither on horseback, but all who heard of it dissuaded me from the idea, asserting that I was about to commit a rash act. Another time when I was coming from Laguna, on passing through Montinlupa, the manager of the estate of that name was so greatly alarmed that he wished to accompany me with his servants until we came near the city, and in fact I learned soon that I was running a great danger on that road, and that shortly before a Spanish sergeant had been murdered on it. Then I was very much surprised to find that it was dangerous to go near the capital without an escort, but later I have been much more surprised to see that in provinces distant from the capital a complete security is enjoyed. In order to show the condition of the criminality of the island we shall present the following data drawn from the clerk’s office of the Audiencia.

Criminal causes sentenced in the Audiencia of Filipinas between the years 1831–1837

[not inclusive]

Years Causes

1832 75

1833 83

1834 43

1835 102

1836 108

411

Report of the criminal causes sentenced between the years 1836–1842 [not inclusive]

Crimes

Years Rebellion or Conspiracy Murder Robbery Theft and Imposition Incendiarism Mobs and Lampoons Falsehood and Perjury Immorality and Scandal Wounds and rough usage Total no. of Causes

1837 43 54 2 2 8 5 114

1838 108 145 6 4 7 52 60 382

1839 74 149 1 5 2 45 41 317

1840 2 83 106 5 1 3 41 54 295

1841 131 216 12 6 5 66 67 499

2 439 670 26 16 19 212 227 1609

Penalties

[Years] Imprisonment Deprivation of Office and other correctives Total no. of Sentences

[1837] 6 99 17 122

1838] 6 140 169 313

1839] 6 192 46 244

1840] 7 131 19 157

[1841] 3 173 77 253

28 735 328 1089

Total number of causes sentenced in the first five years 411

Idem 1607

Increasing the latter 1196

[Here follows a report in tabular form showing the number of causes in each province for the years 1840 and 1841. This table is compiled at least in part from the guide of Manila for the year 1840; the population of each province being taken therefrom. Thirty-three provinces are enumerated. The total number of causes for 1840 was 295, and for 1841, 499.]

The first thing which arrests the attention in these reports is the increase of crime. The fiscal, whom I questioned in regard to this matter, told me that now many causes are elevated to process which were before finished in the interior courts, and that during these latter years many old causes had been sentenced. This may be true, but in regard to the accumulation of back cases that have been sentenced, I believe that that can only be understood from the year 1838, or even from that of 1839, because of the lack of judges in which the court found itself in 1837. No matter how it is considered, the increase is palpable, for the causes alone for murder of last year amount to more than all those of any of the years of the first five years, and it is incredible that at that time they neglected to try people for homicide, although they did dissimulate in regard to lesser crimes. The second thing which arrests the attention is the tendency to theft, since the greater part of the homicides have been committed by robbers, and further one sees a great multitude of causes for theft. For among those two kinds of crime are found two-thirds of all kinds of criminality. This is a matter well worthy of reflection in a country where the means of existence can be procured so readily. The third [thing that arrests the attention] is the mildness of the sentences. In the last five years, when there were 439 homicides, only 28 have ascended the scaffold, one-third of those tried have been set at liberty, and 328 condemned to light punishment. One would not believe that those treated with so great mercy are (at least always) criminals for insignificant faults. A man of the village of Narbakan was tried in the year 1840 for having begotten children twice by his daughter, the second time that having been done by means of assaulting her with a dagger. The attorney asked for ten years of imprisonment, but the Audiencia did not impose any penalty and did not even condemn him to the costs, nor did it take the measure in honor of public morality of causing them to separate, but allowed them to live together as they are still doing. At the beginning of the same year, 1840, Mariano San Gerónimo, a servant from youth to a Spanish tailor called Garcia, stole one hundred pesos fuertes from his master, and another hundred from Captain Castejon, adjutant of the captain-general of the islands, who was living in his house; by extracting them from the trunks of each one. That of the captain-general he opened with the key which the latter’s own assistant gave him. The greater part of the money was delivered to that assistant, his accomplice; the rest was lost at play. This deed served the defender of San Geronimo, Don Agustin Ruiz de Santayana, to petition his acquittal, alleging in his favor the incapacity and irreflection which that individual had shown with the said thief. Both the criminal and his accomplice confessed, and no obstacle was presented to substantiate this verbal process. However, it lasted for more than one year. They troubled the master Garcia so much with notifications and accounts of the maintenance of the prisoner that at last he refused to have anything more to do with the matter, and abandoned the charge. The alcalde-in-ordinary sentenced San Gerónimo to six months’ imprisonment. When the Audiencia examined that clause, March 31, 1841, it ordered the prisoner to be liberated. In Inglaterra, that violator of his own daughter, and the domestic thief would have been given the death sentence on the gallows.

The tribunal might declare that it works in accordance with the spirit of the Leyes de Indias, but be that as it may, it is, in my opinion, certain that with this system of tolerating everything from the natives, and of punishing and degrading the subordinate authorities, the Audiencia of Manila is losing the islands.

So far am I removed from being a bloodthirsty individual that I would like to see the death sentence removed from our criminal code. It would be useless to repeat in support of my opinion the ideas expressed by many celebrated socialists in regard to the abolition of capital punishment, but I will make one observation only, which I have read in no author. The criminal ought always to inspire public scorn and horror, but from the instant in which he is seen on the scaffold, the aversion of people becomes calm, and he is converted into an unfortunate fellow and an object of compassion. This impression does not seem proper to me. Further, restricting myself to Filipinas I shall say that since the penalties are imposed so that fear of them may keep others from committing the crimes, the death penalty does not cause in that country the same effect as in others, for its natives have a distinct physical organization from us, and their instinct of life is much less strong than that of the Europeans. Consequently, outside of cases in which one treats of questions vital for the colony, I believe that the death penalty is a useless cruelty. To mark those criminals well, and to use them in public works, or in agriculture, would be much more advantageous, and would better conserve the real object to which laws should tend, namely, the common good.

One of the things which contributes to the increase of crime is the prohibition in which the chiefs of the provinces find themselves from applying corporal punishment, without the approval of the Audiencia. For if a cause were to be made for the theft of buffaloes, horses, etc., it would be an interminable matter. To put the Filipino in jail is to move him to a better dwelling than his own. Then he is given his food there, which, however little and poor it be, will never be less than that to which he is accustomed daily. He does not work; on the contrary he lies stretched out all day, and that is his happiness. Besides, he finds in the same dwelling other fellow-countrymen with whom to converse and to chew buyo. Consequently, in the country, the idea of going to prison is very far from the impression that it gives in España where men are always animated by the spirit of activity and love to society. It has happened many times and I have seen it, that prisoners escape to attend a feast or go on a pilgrimage, and as soon as that is over they return to present themselves. I am of the opinion that the prison ought alone to be used as a means of detention, and that for light punishments, the lash should be applied. The idea of beating a man is repugnant to many philanthropic persons, for they say that such punishment is for beasts. However, for certain people who do not know what self esteem and honor mean, material punishments are necessary. How can one infuse fear and aversion to crime in one who despises that powerful stimulus for well doing? Who will tell us? This question is still disputed in cultured Europa and the civilized English have not dared to banish the rod from their military code. The first thing which is seen in the hut of any Filipino is the rattan for bringing up their children, and whoever has been in the country for some years thinks that all the provinces would be most tranquil and free from highwaymen if less papers were written and more beatings given.

There are over 80 advocates in Filipinas. The majority have studied in Manila in the same manner as they did a century ago in España. It might be said that they belong to the casuist school. The preparation for any lawsuit is consequential and the superfluous writs innumerable, as our system has always been to open all the doors to the innocence of the natives; and many of the advocates are of that same class or are Chinese mestizos. The language which they use is often indecorous, bold, lacking in purity and idiom, and even in grammatical construction. The Audiencia endures it as it is the old style custom, for in times past there were few advocates capable of explaining themselves better. The Filipinos believe that composed and moderate writs can have no effect at court, and they are only contented with those which are full of invective, reticence, interrogation, and exclamation.

Since the alcaldes of the first instance are laymen, they have to appoint an assessor and very often when one party sees that his suit is badly prepared, he challenges the assessor even three times. It is an abusive matter, and to the prejudice of justice, for in case of challenge of the assessor, that ought to be done at the moment that he is notified of his appointment, and not after seeing that which is not favorable to him, and that judgment is near.

There are orders and even articles of the ordinances of good government to specify the price of food. These schedules are very often, as is evident, the cause of the disappearance of things, and, as they are not found in the market it is necessary to petition the gobernadorcillo to provide food which he is obliged to furnish at the price named in this schedule; and at times where there are many Spaniards and soldiers, that amounts to hundreds of fowls, eggs, etc., which the village must supply monthly and even daily. This is not only an odious task, but also the reason for infamous vexations on the part of the cabezas de barangai, for the unhappy cailianes are those who have to furnish it all without even collecting a thing. It must be well known that cheapness in articles proceeds only from collecting those articles and this proceeds only from abundance, and abundance only from freedom in the market; and the assigning of a low price to any article by schedule is the most direct method of restricting its production and heightening its price.

After all that we have set forth, one can well say that the department of the administration of justice is what needs the most prompt and speedy reform. From that, then, it is obvious that all the alcaldes-mayor ought to be jurisconsults. The custom of allowing governors to trade is not suitable for the age in which we live, surely, although there are some who do not abuse their position, and today there are some who can be presented as models of honor and nobility, especially Don Juan Castilla who governs in Samar, and Don Francisco Gutierrez de los Rios in Laguna. Not only is the latter free from the avarice and other faults which are so common to other alcaldes, and does not make use of the permission to trade, but also recognizes the defects of the present administration, and declaims in the bosom of his friends against them, since he is imbued with the sane principles of justice and political economy. But in such matters one must not reckon on virtue but always with human nature. One day happening to question one of the most judicious and kind persons whom I have known in the islands, how Alcalde Peñaranda had happened to lose his money, he answered me: “He gave it to an agent to use, he to share in the profits, and then paid no attention to it for three years after. He gave up his time very greatly to the building of bridges and roads, and while he was busy in such bits of foolishness, the other made the most of his time and consumed it all.” Another person, of whose philanthropy and gentlemanliness I have positive proofs, told me that if he obtained the government of a province, he would assemble all the influential men and make them an offer to renounce all trade provided that they gave him a certain annual sum. I replied to him that that was an impracticable project and stated my reasons. “Then,” replied he, “I would harass everyone who engaged in trade until he ceased it, or left the province, and it would be all the worse for him.” Such are the evils of a bad system. One becomes accustomed to the idea that a government post offers the opportunity of making money and nothing else. The moment that one has obtained office, he believes that he has a right to make money, without considering the means to any extent; while he who is careless of his own interests and busies himself in the progress of the province, like Señor Peñaranda, is ridiculed and called a fool.

Many believe that to prohibit the alcaldes from trading would be useless, because they would do it by all means through a second person. There might be some fraud, but there is no doubt but that the evil would be remedied, if not wholly, in great measure, especially if any contract in regard to business interests signed by the alcaldes in Filipinas be declared null and void; for it is very difficult to find in the country persons to whom to hand over a capital and be sure of their good faith, and it is not easy to take them with him from España. And even leaving aside these disadvantages, it will always result from the prohibition that the agent of the alcalde will have to manage his money with great secrecy and as if it were his own, in which case there would be no trouble. The government of India was a few years ago entirely commercial, but since the commerce was prohibited, none of its dependents engage in it. Those who have savings deposit them in one of the banks or in one of the good commercial houses there at four or five per cent, or indeed they buy public stock or speculate with them. Alcaldeships in my opinion ought to be divided into three classes and given to individuals, all of them advocates, who would form a body of civil employes. When an alcaldeship of the first class fell vacant, it would be given to the senior advocate in charge of those of the second class, and so on. The regulation that alcaldes were to remain in the country only six years was founded certainly on the fear that they might acquire a dangerous influence over the country. To the degree that the precaution is not unfounded, the term is very short for so long a distance, for among other obstacles it contains the one that when a chief is beginning to know the country he has to leave it. Fifteen or twenty years would be a more fitting time.

In English India all the civil and military employes know the language of the country. That extreme, however advantageous it be, and is, in fact could be brought about here only with difficulty. It would have been easy if one of the dialects of the islands had been established from the beginning as the language of the government and of the courts; for a Visayan learns Tagálog very quickly, and any other idiom of the country, and the same thing is true of the other natives.

[If that had been done] all would at this moment show well or poorly the dominant language, just as in Cataluña, Valencia, the Baleares Islands, and the Basque provinces, Castilian is known. But this is not a matter which can be remedied in a brief time. Consequently, if an alcalde who is beginning to administer justice in Cagayan has to go immediately to Cebú, he will surely arrive there without knowing the language, although he had given himself to the study of it from the very beginning. But if this is an evil, this evil is now being endured, for the alcaldes arrive from España, and since they know that they have to return in six years, they do not take the least trouble to learn the language, and they leave the government in this regard just as when they entered it.

In the capital and its suburbs, justice is administered by means of two lay alcaldes, who are appointed annually by the ayuntamiento from the citizens of the city. When the appointees are men of wealth, they resign, for this charge alone occasions them ill-humor and serious occupations which distract them from their business. Those who accept or desire it, can have no other stimulus than that of vile interest, tolerating prohibited games, etc. It is, then, necessary to appoint two lawyers with suitable pay to be judges of first instance.

Everyone knows what the Leyes de Indias are, the epoch in which they were made, and the distinct regions for which they were dictated. It is, then, indispensable and peremptory to make the civil codes of legal processes, of criminal instruction, and of commerce especially for the country.

In India there is a commission of the government composed of four votes and a president, charged with making and revising the laws of India. For the same purpose, in my opinion, three persons who had studied or should study the country would be sufficient here. In such case I would be of the opinion that they be not allowed to do their work together, but that each one work alone and present his results. Another commission ought to be appointed immediately (there would be no harm in those same men forming it) to examine the codes and present a résumé of the points in which they differed essentially. These would be few and in regard to them the government could take the best resolution.