001 Agabin, Pacifico A., Mestizo - The Story of The Philippine Legal System, Chapter 7

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Chapter Seven
CONQUEST AND PENETRATION:

BIRTH OF THE MESTIZO
Historical Backeround
On the night of February 15, 1898, while the USS Maine

was docked at the Havana harbor, a loud explosion ripped
through the forecastle of the steamship, killing 244 instantly and
injuring eight others. Theodore Roosevelt, then undersecretary
of the Navy, blamed it on the "dirty treachery of the
Spaniards"', and this was bannered in the leading conservative
newspapers. (In 1976, a research team headed by Rear Admiral
Hyman Rickover concluded that the explosion had been caused
by a spontaneous fire in a coal bunker next to a reserve
magazine aboard the warship).2 Roosevelt was part of a
triumvirate who manipulated President William McKinley into
declaring a war with Spain not only to assist the Cuban rebels
win independence but also to occupy the Philippines and, in the
process, crush the newly-born Philippine Republic. The two
other members of the triumvirate were Captain Alfred Thayer
Mahan, who had published The Influence of Sea Power on
History, a classic military and economic thesis which theorized
that national security and international supremacy depended on
the deployment of a powerful navy, and Henry Cabot Lodge,
who wanted to see America realize its "manifest destiny" as a
'Stanley Karnow, IN OUR IMAGE: AMERICA'S EMPIRE IN THE

2 PHILIPPINES, (1989 Pocketbook ed.), 95.
1d. at 97.
170 1 MESTIZO: The Story of the Philippine Legal System
world power.3 They were the warmongers who cried for war
with Spain, aided by two American publishers, William
Randolph Hearst and Joseph Pulitzer, who used their papers to
goad the American nation into war. At that time, Queen Maria
Cristina of Spain realized that her country would be beaten by
the superior American force if war should break out, and she
and her cabinet sought conciliation to avoid certain defeat. But
the majority of the Americans would have none of it, and a
popular ditty rang throughout the country: "Remember the
Maine/ To hell with Spain!"4 War finally broke out in April,
1898. At that juncture, Admiral George Dewey whose small
force was in Japan, was ordered to show the flag in the
neighborhood of the Philippines so as to catch the attention of
the Spaniards in a diversion to the action in Cuba.5 When
President McKinley issued his order, he could not even properly
locate the Philippines on the map, telling his friends that it was
a place "somewhere away around on the other side of the
world".6 Nonetheless, the US Congress passed on April 19,
1898, a resolution declaring war with Spain, and the Secretary
of the Navy, with McKinley's approval, cabled "Proceed at once
to the Philippines. Commence operations against the Spanish
squadron. You must capture or destroy. Use utmost
'
endeavors." After midnight on May 1, 1898, Dewey did
proceed to the Philippines and destroyed the aging Spanish fleet
after a two-hour battle. The shortness of the sea battle could be
equaled only by the length of McKinley's angst as he agonized
3 d. at 10.
4_d. at97.
5
/d. at 100.
6Ibid.
7/d. at 102.
Chapter Seven: Conquest and Penetration:
Birth of the Mestizo 1 171
on the question of whether his country would take or leave the

Philippines as a colony.
"McKinley has no more backbone than a chocolate
eclair", a frustrated Theodore Roosevelt moaned as the latter
pushed the US into war with Spain.8 McKinley exhibited the
same indecisiveness when he was confronted with the
Philippine problem. The popular joke about him ran: "Why is
President McKinley's mind like a bed?" "Because it has to be
made up for him before he can use it". 9 The cabinet members
who made up his mind on annexation of the Philippines were
John Griggs, his attorney-general, and Cornelius Bliss, secretary
of interior, who saw the country as a springboard for commerce
in Asia, and James Wilson, secretary of agriculture, who, as a
devout Presbyterian, saw the archipelago as a field ripe for
evangelical endeavor. 10 They were backed by Henry Cabot
Lodge and Admiral Mahan who persuaded McKinley of the
advantages of projecting sea power in the Pacific. Only ten
months before, the President had opposed a war for annexing
territory, saying that it is against "our code of morality" and
would be "criminal aggression". 11 McKinley later told a group
of visiting Methodist ministers that, after kneeling to the
Almighty to beg for light and guidance, he got the idea that he
should take the country "to educate the Filipinos, and uplift and
Christianize them, and by God's grace do the very best we could
by them, as our fellow men for whom Christ died". 12 This is
probably an afterthought; at that period in American history, the
8 Id. at 99.
9
_d. at 125.
'0 /_d, at 126.
1Id. at 127.
12_.d. at 128.
leaders of the country had labored under the delusion that it was
America's 'Manifest Destiny' to expand westward to make the
Pacific an American lake. 13 On October 26, 1898, McKinley
instructed his negotiators in Paris that he now wanted to annex
the whole Philippines in its entirety, and not only the crucial
parts of it. And so, on December 10 of that year, the treaty of
Paris was signed granting independence to Cuba but making the
14
Philippines, Guam and Puerto Rico American possessions.
The treaty provided a veneer to legitimize the American
occupation of the Philippines; it can also be seen as the
marriage contract between the civil law and the common law
system in what may be called a union of convenience.
The Philippines became an unincorporated territory of
the United States starting with a military government headed by
Major General Wesley Merritt, a veteran who fought with
Custer against the Indians. As the first military governor of the
islands, he acted as if he were still pursuing the Apaches.' 5
When the Philippine-American war broke out in February,
1899, the responsibility for the governance of the Philippines
was transferred from the State department to the War
department. This department was headed by Elihu Root, a
Harvard-trained lawyer, who was also transferred from the State
department to Secretary of War as of August 1899. One of his
first official acts was to justify the expansionist policy of the US
as regards the Philippines and, in the instructions he drafted to
the Philippine Commission, he emphasized that America would
13
Robert Cumings, DOMINION FROM SEA TO SEA: PACIFIC
ASCENDANCY AND AMERICAN POWER (Yale, 2010), p. 10.
14 Karnow, gd. at 130.
15 Cumings, supra. at 118. In fact, 11 of the US army generals assigned to
the Philippines were veterans of the Indian wars.
civilize the natives according to the constitutional standards of

the US constitution.1 6 The War department had reminded the
members of the Taft Commission that certain principles of
government are essential to the rule of law and the maintenance
of freedom, and the natives must adhere to these standards for
their own liberty and happiness. 17 This set of instructions fitted
into the perceived mission to civilize the Filipino with a Krag,
as Taft looked down on the majority of the natives as "ignorant,
superstitious, and credulous".' 8 The acid test on how the
instructions would be carried out came in a case that reached the
Philippine Supreme Court in 1902.19 The case raised the
ultimate issue as to whether the US constitution followed the
American flag or not. Relying on an earlier case decided by the
American Supreme Court,20 the Philippine Supreme Court ruled
that not all of the rights listed in the American constitution
followed the flag into the Philippines. Certainly, not the right to
bear arms at a time when the Americans were kept busy
pacifying the Filipino freedom fighters, nor the right to trial by
jury, as the Americans looked down on the indios as uncivilized
savages.
Taft thus looked to the ilustrados - the upper class
lawyers, doctors and landowners as the key to his policy of
attraction, realizing that the majority of Filipinos looked upon
the elite for leadership and inspiration. And the Filipino
16
Karnow, sura atp. 170.
17 See McKinley's Instructions to the Second Philippine Commission.
1'Karnow, suyra. at p. 173.
'9 United States v. D 2 Phil. 269.
20 Dowies v. Bidwell 182 U.S. 244, which ruled that Puerto Rico, being
only an unincorporated territory, is not subject to all the provisions of the
US Constitution. See also Peke v. US., 183 U.S. 176 (1901), applying
that ruling to the Philippines.
ilustrados relished their role as "little brown brothers" to the

Americans, knowing that their political power and property
rights would be safeguarded under the guarantees of the
American constitution. They formed the PartidoFederalistato
lay the foundations of eventual statehood in the American
union. In 1901, the US Congress had to enact laws to govern
the Philippines. The task of crafting legislation was given to
Senator John Spooner, who looked at the acquisition of the
islands as "one of the bitter fruits of war". 2 1 He authored the
Spooner Amendment, which created the principal organ of
administration, the Philippine Commission. In the same year,
military government came to an end, and a civil government
was instituted. When McKinley looked around for an honest
and able figure to head the Second Philippine Commission, he
chose William Howard Taft, who was then a federal judge in
Ohio.
Constitutionalism and Common Law

Comes to the Philippines
In 1900, President William McKinley instructed the then

District Judge William Howard Taft, who was known for his
propensity to issue labor injunctions, as head of the Philippine
Commission, to "impose" upon the Philippine government "the
inviolable rule that no person shall be deprived of life, liberty or
property without due process of law".22 There is no doubt that
the rule carried with it all the case law laid down by the US
21/d. at 166.
2 President McKinley's Instructions to the Taft Commission, April 7, 1900,
reprinted in 2 Aruego, THE FRAMING OF THE PHILIPPINE
CONSTITUTION 762 (1937).
Supreme Court. Even the manner of its interpretation in the

Philippines was laid out along a narrow, undeviating path of the
common law. The American Congress saw to it that the
transplanted constitutional rights would be developed along
lines laid out in the United States by providing that the Supreme
Court of the United States had jurisdiction over all judgments of
the Philippine Supreme Court in cases in which the Organic Law
of the Philippines, or any statute, treaty, title, or privilege of the
United States, was involved.23 Furthermore, appeal from the
judgment of the Philippine Supreme Court lay with that of the
Washington Court.
It is to be expected that the American administrators had
to rely on the Federal Supreme Court to protect their interests in
the newly-acquired colony. The Court had earlier demonstrated,
in 1901, that it was not beyond politics in the use of judicial
review to protect American interests in the colonies. This was
manifested in the Insular Cases for Puerto Rico, and in the case
of the 14 Diamond Rings for the Philippines. These cases, which
technically involved judicial review of executive action, cropped
up when Taft was the civil governor of the Philippines. As the
ultimate issue in these cases was whether the American
Constitution followed the flag or not, the Governor General was
agitated. He showed slight patience with those who contended
that the inhabitants of the colonies had the full protection of the
24
U.S. Constitution, calling them "cranks and fanatics."
To make sure that his views would be heard, Taft wrote
to his friend, Associate Justice John Harlan, warning the latter
23Act of July 1, 1902, 32 Stat. 369.

24 H. Pringle, LIFE AND TIMES OF WILLIAM HOWARD TAFT, Vol. 1
(1939), p. 207.
that "if you should decide that the Dingley Law must extend to
these islands, it will produce a confusion in the finances here,
for which at present I see no remedy, and it will subject these
islands and their businesses to a tariff law framed only for the
U.S. and inapplicable to islands so far removed from that
country., 25 Obviously the U.S. Supreme Court agreed with Taft,
for, in a 5-4 decision, it held that the protection of the
Constitution could not be automatically extended to the
colonies. 26 This ruling was applied to the Philippines in the case
of the 14 Diamond Rings,27 where the Federal Supreme Court
was also divided 5-4 along the lines of the Insular cases
decision. The majority also held, in effect, that the Philippines,
though not a foreign country, was placed outside the provisions
of the U.S. Constitution with respect to national taxation.
Subsequently, the area of civil and political rights previously
denied to the Philippines and other colonized territories was
expanded by the U.S. Supreme Court (e.g. trial by jury).28
The decision of the U.S. Supreme Court in the Insular
Cases was pursuant to the interests of the economic centurions
of the U.S. not only for the protection of their sectoral business
participation but also for trade expansion. Stanley Karnow
writes that the Supreme Court in these cases bowed to McKinley
and the Republicans in Congress. 29 As Mr. Dooley of Finley
Peter Dunne perceived it, "no matter whether the constitution
follows the flag or not, the Supreme Court follows the election
2
1/d. at 208.
26 De Lima v. Bidwell,
182 U.S. 1; Downes v. Bidwell, 182 U.S. 244 (1901).
27 Pepke v. U.S., 183 U.S. 176 (1901).
28 Kepner v. U.S., 195 U.S. 100 (1904); Dorr v. U.S., 195 U.S. 138 (1904).
29S. Karnow, INOUR OWN IMAGE: AMERICA'S EMPIRE INTHE
PILIPPINES (1979), p. 192.
returns." To the vested interests in the U.S., this decision meant

that agricultural products in the U.S. were assured of protection
by the U.S. Congress from competition by Philippine products;
at the same time, the U.S. Congress could adjust tariff laws of
the Philippines to allow the preferential entry of American goods
into the latter. And that is exactly what the U.S. Congress did
after the ruling of the Federal Supreme Court in the case of the
14 Diamond Rings. Pressure from the beet sugar, tobacco and
other business interests lobby, who were hysterical in the
defense of their cause for high tariffs, compelled the U.S.
Congress to maintain the high tariffs for Philippine products
entering the U.S. by legislating only a token 25 percent cut,
while American goods entered the Philippines virtually duty-
free.
The Insular Cases likewise paved the way for Congress
to approve the law extending the Chinese exclusion laws to the
Philippines. Furthermore, this decision made it justifiable to
deny American citizenship to Filipinos even as they were made
to swear allegiance to the U.S. Thus, the Organic Act of 1902
decreed that "all inhabitants of the PI (Philippine Islands) shall
be deemed to be citizens of PI" only.
The judiciary, as part of the colonial government
organized in the Philippines at the beginning of the American
regime, was doubtless expected to carry out the colonial policy
of the Americans. Besides the influence of American
jurisprudence on laws extended to the Philippines by
congressional edict and by the principle of stare decisis, the
appointing powers had always seen to it that majority of the
members of the Supreme Court of the Philippines were
Americans.30 And President McKinley instructed the Taft
Commission that "an indispensable qualification for all positions
of trust and authority must be absolute and unconditional loyalty
to the United States;" and "absolute and unhampered authority
and power to remove and punish any officer deviating from that
standard" was retained in the hands of the colonial
administrators. 31 Thus, the rights were given to the Filipinos in
much the same way that Napoleon decreed liberty to the
English. But at least Napoleon did not go to the extent of
remaking England into an image of France.
It must be noted, however, that the Filipinos had their
own notions of the law of the land, or "due process" before the
coming of the Americans. The provision of the Malolos
Constitution on due process provided that:
"No person shall be deprived
temporarily or permanently of his
property or rights, or disturbed in
his possession, except by virtue
of a judicial sentence." 32
There is no mistaking this provision for substantive due

process; it is patently a guaranty of procedure, that is, judicial
procedure. And this was to be governed by the existing Code of
Procedure, without prejudice to certain modifications which in
33
special circumstances the laws may prescribe.
30
Hayden, THE PHILIPPINES: A STUDY IN NATIONAL
31 DEVELOPMENT 243 (1942).
Pres. MacKinley Instructions, sura note 22, ibid.
32The Malolos Constitution, reprinted in 2 Aruego, THE FRAMING OF
33
THE PHILIPPINE CONSTITUTION (1937) at 1070.
ibid.
That the notion substantive of due process was

transplanted in a country distant from either Runnymede or
Philadelphia can be seen from Philippine conditions at the time
of its introduction. Indeed, constitutionalism was incongruous
in an idyllic setting of economic underdevelopment. The
American colonial administrators found this out in the first two
decades of the American regime as they asserted the
paramountcy of police power during the period when they were
pacifying the rebellious Filipinos and setting up a stable civil
government.
The second Philippine Commission set up in 1900 was
charged with the task of setting up a new government created in
the American image. The commission was vested with
legislative and executive functions, while the judicial functions
were exercised by a judiciary with an American-dominated
Supreme Court at its apex. 34 The grant of legislative power to
the Philippine Commission meant the influx of borrowed laws
as well as of common law doctrines. The dearth of laws at the
beginning of the American regime greatly stimulated legislative
activity on the part of the Commission. The almost
indiscriminate borrowing from American models made it
inevitable for the Philippine Supreme Court to interpret the
35
provisions of those laws in line with American precedents.
Subsequently, the U.S. Supreme Court stamped its imprimatur
on this practice in line with the rule of construction that the
provisions of borrowed laws must be construed with reference
34
Act No. 136 sec. 18 (1901).
31 Alzua v. Johnso 21 Phil. 308 (1912).
180 1MESTIZO: The Story of the Philippine Legal System
to the patent statute.3 6 Then the Philippine Court laid down the
rule that all provisions of the United States Constitution for the
protection of the rights and privileges of individuals which were
extended to the Philippines must be interpreted as meaning what
like provisions meant when the US Congress made them
37
applicable to the Philippines.
Constitutional Law: Hegemony of Police Power
The exigencies of asserting American authority and of

setting up a civil government made it imperative for the
Philippine Supreme Court to use common law concepts in
public law to assert colonial authority. It subordinated property
rights to police power. Thus, the first decision of the Court
where the issue of due process was raised affirmed the
supremacy of police power especially where the property
involved is invested with a social function. 38 It was ruled in this
case that the state not only has the authority under its police
power to make such rules for the protection of its citizens, but it
may also regulate private business in such a way that the
business of one man shall not be a nuisance. 39 In another case
that cropped up in 1915, the Court upheld the validity of the law
prohibiting the slaughter of carabaos for human consumption.4 °
On the defendant's contention that the prohibition constituted
undue deprivation of one's property, the Court stated that the
36 See Kepner v. U.S. 195 U.S. 100, 24 S. Ct. 797, 49 L. Ed. 114 (1904);
Serra
31 U.S. V.v.
B MortigR 204 U.S. 470, 27 S. Ct. 343, 51 L. Ed. 571 (1907).
l 16 Phil. 7 (1910).
38 U.S. v. Ling Su Fan. 10 Phil. 104 (1908); aff'd, in Ling Su Fan v. US.,
39
218 U.S. 302, 31 S. Ct. 21, 54 L. Ed. 1049 (1910).
ibid.
40 U.S. v. Toribio 15 Phil. 85 (1910).
law was a just and reasonable exercise of the power of the

legislature to regulate and restrain the use of property as would
be inconsistent with or injurious to the rights of the public.
The court pointed to the emergency caused by the rinderpest of
1902 as the basis for the remedial legislation, and declared that
police power rests upon necessity and the right of self-
protection.41
It was in the regulation of shipping and in the imposition
of burdens on shipowners that the common law doctrines on
businesses clothed with public interest were excessively used by
the Supreme Court. In De Jillata v. Stanley,42 the Court held
that the government may require shipping companies to carry
mail free of charge. The Court reasoned that the business of
common carriers is a quasi-public employment and it is only
when the owner of a vessel enters the business that additional
burdens may be imposed upon him. The operator should not,
therefore, complain of deprivation of property without due
process when he voluntarily entered the business of shipping,
for he knew that one of the conditions for obtaining a license
was to agree to free carriage of mail. However, four years later,
when another shipping firm challenged the statute on the same
ground, the U.S. Court reversed the ruling and held the law
invalid as repugnant to the due process clause. 43 In still another
case, an order of the Board of Public Utilities Commissioners
which required an operator of a steamship company to maintain
and publish a fixed schedule of the arrival and departure of
ships was challenged as violative of due process. Again, the
41
ibid.
42 32 Phil. 541 (1915).
43 Board of Public Utility Commissioners v. Ynehausti 251 U.S. 401, 40 S.
Ct. 277, 64 L. Ed. 327 (1920).
Philippine Court upheld the contention of the petitioner, saying:

"It is not due process of law to
charge a public utility with one
act or omission and convict it of
another; nor is it due process of
law to investigate a particular
subject in a given proceeding and
then make an order which relates
44
to an entirely different subject.",
At this juncture, the Supreme Court began to veer away

from established doctrines of the common law, at least in the
area of constitutional law, and began a process of judicial
legislation so beloved of common law judges.
Ascendancy of Substantive
Due Process in Constitutional Law
The political mood of the twenties in. the United States

profoundly affected the course of judicial thought in the
Philippines. The change of administration in Washington also
meant a change in economic policies. The pull of gravity
exerted by a business civilization began to influence judicial
thought. President Harding, and later President Coolidge, made
laissez faire a plan for dynamic action. 45 By that time, William
Howard Taft had been named to the US Supreme Court as
Chief Justice, and he saw no greater domestic issue in the 1920
44 Yanco v. Board of Public Utility Commissioners, 36 Phil. 116, 126

(1917).
45 Leighton, The
Aspirin Age, quoted in Mason, SECURITY THROUGH
FREEDOM 56 (1959).
election "than the maintenance of the Supreme Court as the

bulwark to enforce the guaranty that no man shall be deprived
of his property without due process of law.",46 President
Harding, whose guiding slogan was "less government in
business and more business in government,"4 7 did not spare the
Philippines, which at that time was known for its numerous
48
government-owned development and marketing corporations.
Appointed Governor-General of the Philippines was Leonard
Wood, a trusted Harding lieutenant who, upon his induction
into office in 1921, hammered on his policy of "keeping the
government out of business in order to encourage private
enterprise". 4 9 He thus reversed the policy laid down by his
predecessors, and sold to private firms almost all government
corporations. 50 He strongly opposed the grant of Philippine
independence on the ground that the country did not have a
stable government, and he defined a stable government as "one
where public and private funds are abundant and readily seek
investment at moderate rates of interest."5 1 The colonial
government's partiality to American businessman can be seen
from the fact that federal taxes supposed to be paid by
American businessmen doing business in the Philippines were
not collected during the Harding, Coolidge, and Hoover
administrations, upon strong representations made by Chief
Justice Taft, Governor General Wood, and even President
447 Taft, Mr. Wilson andthe Campaign, 10 Yale Review 19-20 (1920).
Mason, SECURITY THROUGH FREEDOM 38 (1959).
48Apostol, THE ECONOMIC POLICY OF THE PHILIPPINE
GOVERNMENT; OWNERSHIP AND CONTROL OF BUSINESS 93
49
(1923).
1bid.
50
bid.
5 1Anderson, THE PHILIPPINE PROBLEM 139 (1939).
52
Hoover himself.
It was at this stage of Philippine economic development
that the American-dominated judiciary became a model of what
a court should be in protecting property interests against the
assaults of what was then the advent of the newly-installed
Filipino legislature. Suddenly, it dawned on the judiciary that
an all-Filipino legislative body might pass laws destructive of
property rights.
Thus, new meaning came to be infused into the due
process clause of the Organic Act when, in 1922, an Act of
Congress and an implementing executive order of the previous
Governor General fixing the price of rice was challenged before
the courts.53 At that time, the Philippines could not produce
sufficient rice and it used to import rice from Saigon. A rise in
price in Saigon caused a corresponding increase in the
Philippines, and as the stocks of rice became depleted and the
chances for importation grew uncertain, the rice merchants
withdrew their stocks from the stores and hoarded them,
awaiting the high prices that would follow. The machinations
of market manipulators made the price soar beyond the means
of the consumers. It was thus that the government sought to
remedy the situation by regulating the price of rice. 54 A
Chinese merchant, Ang Tang Ho, was accused of violating the
law and the executive order and, by way of defense, he
challenged the constitutionality of the executive order as well as
the enabling statute granting authority to the Governor General
52
/d. at 49.
5
3Apostol, suranote 50 at 23.
*4Report of the Secretary of the Department of Commerce and
Communications (1919).
Birth of the Mestizo 1185
to fix the price of rice." In declaring both the executive order

and the statute unconstitutional, the Supreme Court adopted a
rigid and absolutist approach to the Constitution, and in ringing
tones, exhorted:
"The Constitution is something
solid, permanent and substantial.
Its stability protects the life,
liberty and property rights of the
rich and poor alike, and that
protection ought not to change
with the wind or any emergency
condition. The fundamental
question involved in this case is
the right of the people of the
Philippine Islands to be and live
under a republican form of
government. We make the broad
statement that no state or nation,
living under a republican form of
government, under the terms and
conditions specified in Act. No.
2868, has ever enacted a law
delegating the power to any one
to fix the price at which rice
56
should be sold.",
In the same decision, the Court emphasized the private nature of

the property whose price was sought to be regulated, and
55 Act No. 2868 sec. 1 (1919).

56
U.S. v. Ang Tang Ho 43 Phil. 1, 17 (1932).
distinguished this from the wheat and flour commandeered by

the US government during the First World War. According to
the Court, the latter became public property after they were
commandeered, and the government could thus fx the price; in
the Philippine case, the government was dealing with private
property rights which, in the eyes of the Court, are "sacred
under the Constitution".5 7 While the Court was not oblivious of
the hardship encountered by the people, it declared that "the
members of this Court have taken a solemn oath to uphold and
defend the Constitution, and it ought not to be construed to meet
the changing winds or emergency conditions". Thus, the
Court set itself up as the reviewing branch of the government in
economic legislation.
After this far-reaching decision in favor of private
property, the Court adopted from the United States the doctrine
of "liberty of contract" to complete the cult of laissez faire. The
constitutional challenge was thrown at the Women and Child
Labor Law,5 9 which required employers to give maternity leave
pay to women employees. An employer who refused to comply
with the statute was indicted and, as a defense, he challenged
the law as violative of his freedom to contract.60 In declaring
the law unconstitutional, the Court, speaking through Justice E.
Finley Johnson, said:
"The law has deprived every
person, firm or corporation
owning or managing a factory,
57
/d. at 18.
58 CitingTyson & Bros. United Ticket Theatre Officers v. Baton.273 U.S.
418, 47 S. Ct. 426, 71 L. Ed. 718 (1927).
59Act No. 3071 (1916).
60 Peopl v. o 46 Phil. 440 (1924).
shop or place of labor of any

description within the Philippine
Islands, of his right to enter into
contracts of employment upon
such terms as he and the
employee may agree upon. The
law creates a term in every such
contract, without the consent of
the parties. Such persons are,
therefore, deprived of their liberty
to contract. The Constitution of
the Philippine Islands guarantees
to every citizen his liberty and
one of his liberties is the liberty to
' 61
contract.
The Court agreed with US Supreme Court Justice Sutherland

who penned the Adkins case decision 62 that "wages are heart of
a contract" and then stated:
"In all such particulars the
employer and the employee have
equality of right, and any
legislation that disturbs that
equality is an arbitrary
interference with the liberty of
contract which no government
can legally justify in a free land,
61 Id. at 454.
Adkins v. Children's Hospital of D.C., 261 U.S. 525, 43 S. Ct. 394, 67 L.
Ed. 785 (1923).
under a constitution which

provides that no person shall be
deprived of his liberty without
63
due process of law.
Thus, the constitutional doctrines born out of the

business civilization of America were applied indiscriminately
to an underdeveloped economy. The copious citations from
American cases point to the helplessness of the Court in the grip
of the common law principle of stare decisis. The Court could
not go against the current of dominant judicial thought spawned
by the free enterprise philosophy of a business culture. Adkins,
Adair, 64 and Coppage were more than names in the Supreme
Court reporter system; they were the guiding doctrines in the
heyday of laissez faire not only in the US but also in its
economically-challenged colony.
The influence of Chief Justice William Howard Taft as
high priest of the new constitutionalism was not limited to the
United States. An opportunity for him to write his notion of
what is fair and reasonable in the regulation of business cropped
up with the Yu Cong Eng case, 66 which involved the Chinese
Bookkeeping Act. Sometime in 1920, the Philippine
Legislature, seeking to prevent tax evasion among the Chinese
businessmen, passed an act which made it unlawful for any
person engaged in commerce, industry or any other activity for
the purpose or profit to keep its account books in any language
63 /d. at 452.
64 Adair v. U.S. 208 U.S. 161, 28 S. Ct. 277, 52, L. Ed. 436 (1908).
65 Copage v. Kansas 236 U.S. 1. 35 S. Ct. 240, 59 L. Ed. 441 (1915).
6 Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S. Ct. 619, 70 L. Ed. 1059
(1926).
other than English, Spanish, or any local dialect. 67 As expected,

the Chinese merchants brought the case to court on the issue of
constitutionality. The Philippine Supreme Court, attempting to
give every intendment possible to the validity of the act,
indulged in semantics by defining "account books" to mean
only those that are necessary for purposes of taxation. The
Court limited the meaning of the phrase by way of compromise
between upholding the law and safeguarding the property rights
of the Chinese merchants.
On appeal to the U.S. Supreme Court, the latter,
speaking through Chief Justice Taft, rejected the construction
given by the Philippine Court and instead took the view that the
law by its plain terms forbade the Chinese from keeping their
account books in any language except English, Spanish, or any
local dialect; in short, according to the Washington Court, it
68
forbade the Chinese to keep their account books in Chinese.
That Court then held that to prohibit Chinese merchants from
maintaining a set of books in Chinese would be "oppressive and
arbitrary" as it would prevent them from being advised of the
status of their business. The Court took note of the fact that
majority of the Chinese merchants in the Philippines did not
speak or write English, Spanish or any local dialect. Without
their books of account in Chinese, according to the Court, such
merchants would be prey to all kinds of fraud. To the Court,
this "would greatly and disastrously curtail their liberty of
action, and be oppressive and damaging in the preservation of
their property". 69 As against Chinese merchants, "the law
67
Act No. 2972 sec. 2 (1920).
68
1d. at 511.
69
Id. at 514.
deprives them of something indispensable to the carrying of

their business and is obviously intended chiefly to affect them as
distinguished from the rest of the community" 7
Thus, after many years, the doctrine of Yick Wo v.
Hopkins had at last reached the Philippines through the efforts
of the US Supreme Court. Under another Chinese name, the
concept of due process in its substantive aspect had been
transplanted in Oriental soil. This is a good example of how the
legal processes and methods of the common law system charted
the course of Philippine legal history. It also shows how the
dominant economic philosophy of an era reshapes the
constitutional law of a social order.
Procedural Law:
From Inquisitorial to Adversarial
Crossbreeding of the two systems of law started

immediately upon the Americans' entry into Manila after the
signing of the Treaty of Paris. In fact, the Codes of Procedure
were promulgated as General Orders of the military, purportedly
"to cover omissions of the Spanish legal system". General
Order No. 68, promulgated on December 18, 1899, displaced
the provisions of the Siete Partidas on marriage, securing
liberty of marriage and instituting civil marriages. The new
Code of Civil Procedure, based upon the California, Vermont,
and Ohio codes, departed radically from the Spanish rules by
abrogating the challenging of judges, the civil liability of
judges, and requiring public trials. General Order No. 58,
promulgated on April 23, 1900, the new Code of Criminal
Procedure, was issued "to safeguard the civil liberties of the

inhabitants", abolishing the inquisitorial procedure and adopting
the accusatorial system. Thus, it had to secure all the rights of
an accused under American rules except the trial by jury. The
Philippine Commission, which was the sole legislative organ of
the colonial government from 1900 to 1907, passed 1,800 laws
of public character, the most important of which are the
municipal code, the provincial government act, the Manila
charter, the special provincial government act, and the township
government act, the government reorganization act, the civil
service law, the election law, the charter of Baguio City, the
organic act for Mindanao and Sulu, the organization of courts,
and the code of civil procedure. 7 '
A good example of twists and turns of the rules of
procedure arising from the shift from the inquisitorial to the
accusatorial system is the history of the jurisprudence on
admission of illegally obtained evidence. Under the
inquisitorial system of the Spanish, illegally seized evidence
was admissible, as may be noted in the trial of Jose Rizal. The
common law rule, as distinguished from the federal rule, that
was imported into the Philippines by the Americans is that
evidence is not rendered inadmissible simply because it has
been unlawfully obtained.
But before the Americans came to colonize the country,
the U.S. Supreme Court had already declared unconstitutional
the admission at a trial of evidence obtained by an unreasonable
search and seizure.72 Unfortunately, however, the same Court
had a change of mind in 1904, and held in Adams v. N. K that
71 Pedro Ylagan, "Philippine Law", III Phil. L.J. 237 (1917), at 239-
72 Boyd v. U.S.,116 U.S. 616 (1886).
73
such evidence is indeed admissible.
With this ruling, criminal defendants started looking for
other ways to justify exclusion of illegally-procured evidence.
In 1911, an accused named Mills succeeded in obtaining an
order from a federal court that evidence obtained by unlawful
search be returned to him.7 4 He did this through the devise of
petitioning for the return of the evidence after indictment but
before trial. The Supreme Court three years later approved of
this method and reversed its ruling in Adams, saying that its
ruling in that case was prompted by a desire to prevent the
interruption of an orderly trial by means of the intrusion of a
75
collateral issue as to the source of evidence.
In the Philippines, the Supreme Court followed the
federal rule laid down by the U.S. Supreme Court. In Alvarez v.
CFI of Tayabas,76 our Court held that documents unlawfully
seized inside a house must be returned provided timely motions
are filed for their return. In U.S. v. de los Reyes and
Esguerra,77 our Court stated that "it is better sometimes that
crimes go unpunished than that the citizen should be liable to
have his premises invaded". Then came the war and liberation,
and with it the Prosecution of Japanese war-time collaborators.
In the case of Moncado v. People's Court,78 our
Supreme Court relied on Justice Cardozo as saying that the
criminal should not go free because the constable has
71 192 U.S. 585 (1904).

74
U.S. v. Mills. 185 F. 318.
75 Weeks v. US.. 232 U.S. 383 (1914]).
76 64 Phil. 33.
77 20 Phil. 472.
78 80 Phil. 1.
blundered.7 9 Our Supreme Court ruled that the constitutional

guaranty against unreasonable searches and seizures do not go
to the extreme with respect to evidence obtained illegally by the
prosecution. Rule 123 of the Rules of Court makes no
exception with respect to evidence illegally obtained, said the
Court. This ruling reversed earlier doctrines that evidence
wrongfully obtained cannot be seized under a search warrant for
the purpose of using them as evidence of a crime. 80 However,
this case also held that even if the issuance of a search warrant
was irregular, contraband and illegal drugs seized thereunder
would not be returned to the owner.
It was only in Stonehill v. Diokno, 8 1 that our Supreme
Court expressly abandoned the Moncado ruling and reverted to
earlier doctrines of exclusion. "The exclusion of such evidence
is the only practical means of enforcing the constitutional
injunction against unreasonable searches and seizures",
reasoned the Court.
Retention of Private Law and Custom Law
The pre-existing private laws in the Philippines were left

in place by the new colonizers except for certain aspects which
were thought to be in conflict with American notions of
democracy and republicanism. Thus, while the civil code
regulating personal status, the family, property and land
inheritance, contractual and delictual liability was retained,
amendments were instituted with respect to the marriage law
79
80
Peovlev. Defoe. 150 NE 585.
Uy Khetin v. Villareal 42 Phil. 886.
81 20 SCRA 383.
and the laws governing associations, adoption, absence, and

prescription. A military General Order, No. 68, for example,
superseded the Spanish-inspired marriage law which recognized
only church marriages, and instead instituted civil marriages in
the Philippines. Later, the Americans revised the procedural
rules by promulgating the Code of Civil Procedure, based on
the New York and California Rules, which modified the laws on
prescription, absence, adoption, etc.
The decision to retain private civil law was not
influenced by political demands or remonstrances on the part of
the Spanish, because the Americans took over after defeating
the Spaniards and by virtue of a formal peace and acquisition
treaty. At that time, the number of Spaniards who remained in
the Philippines were politically negligible, and they were no
longer a political force. The only Spaniards who remained in
the Philippines were the members of the religious orders who
wanted to continue with-their evangelical mission and, at the
same time, protect their property titles in the country. Only the
exigencies of colonial administration induced the Americans to
retain private civil law in the Philippines.
Likewise, temporary expedience dictated the retention of
customary law of the indigenous Filipinos. After the signing of
the Treaty of Paris in 1898, President McKinley issued
instructions to the Philippine Commission (the body charged
with the function of governance of the Philippines) on April 7,
1900 that "In dealing with the uncivilized tribes of the Islands,
the Commission should adopt the same course followed by
Congress in permitting the tribes of our North American Indians
to maintain their tribal organization and government and under
which many of these tribes are now living in peace and
Birth of the Mestizo 1195
contentment, surrounded by civilization to which they are

unable or unwilling to conform". The Instructions of President
McKinley was ratified by the Act of the US Congress of July 1,
1902.
After the Americans had successfully conducted the
pacification campaign against the Filipino revolutionaries,
however, they reversed the policy of legal pluralism and
embarked on a policy of assimilation of the indigenous peoples.
In 1904, for instance, the first governor of the Muslims in the
Moro Province wrote to a friend that "Our policy is to develop
individualism among these people and, little by little, to teach
them to stand on their own two feet independent of petty
chieftains".,82 In 1905 the US abrogated its treaty with the
Sultan of Sulu and, in 1914, imposed a uniform law that
disregarded Muslim customary law.83
It can be seen that, as regards custom law, it was not
really a matter of recognition; it was more of the Americans'
failure to penetrate the areas inhabited by the ethnic
communities. They were not able to colonize the hinterlands
and the mountainous areas where the more than 100 ethnic
communities had retreated to resist the social, political and
cultural inroads of colonization. This is not to mention the
southern part of the Philippines which was inhabited by the
Muslims who embraced Islam long before the arrival of the
Spaniards. The Muslims were not conquered by force of arms
either by the Spanish or the Americans, and they retained some
82 Justin Holbrook, "Legal Hybridity in the Philippines: Lessons in Legal

Pluralism From Mindanao and Sulu Archipelago", citing Thomas
McKenna, MUSLIM RULERS AND REBELS (1998) at pp. 80-85;
electronic copy available at: http://ssm.com/abstract= 1486169.
83 TIbd.
sort of political and religious independence from the colonizers.

Thus, the ethnic and cultural minorities managed to retain their
personal laws and customs as well as their social and cultural
institutions.
The Americans later pursued a policy of assimilation of
ethnic minorities including the Muslims starting in 1903 with a
"view to determining the most practicable means for bringing
about their advancement in civilization and prosperity". Most
of the tribes and the Muslims were able to resist such attempts
to "civilize" them. The ethnic tribes retreated to the mountains
and forests, and the Muslims were able to preserve their own
customary and religious laws against American impositions.
Thus, Western personal law failed to penetrate the ancestral
domains of the indigenous peoples. Up to now, these cultural
minorities and the Muslims have retained their customary laws
and their cultural and economic institutions.
In a Philippine Supreme Court decision penned by an
American justice,84 it was stated that the civil-law system was in
accordance with the principles of international law. Said the
Court:
"The Spanish statute law, as
amplified by Spanish
commentaries but without a
background of Spanish precedent
or case law, was, by the change of
sovereignty, severed from Spanish
jurisprudence and made effective
in this jurisdiction to the same
extent as if Congress had enacted
84In re Shoop, 43 Phil. 213 (1921).

new laws for the Philippines

modelled upon these same
statutes. '85
An American author who served as Governor-General,

W. Cameron Forbes, observes that "the Spanish substantive law
was admirable and, in later years, was to a great extent based on
86
the Code of Napoleon."
The fear of disturbing land titles especially those
belonging to the Spanish friars and Spanish elite in Manila, was
probably a big factor in the decision to protect existing property
rights. In fact, in the negotiations that led to the Treaty of Paris
of 1898, it has been noted that the Vatican, concerned over the
fate of the land titles of the Spanish friars in the Philippines,
worked for the inclusion of the provision of the Treaty that the
cession of the Philippines to the United States "cannot in any
respect impair the property or rights which by law belong to the
peaceful possession of property of all kinds.. by
87
ecclesiastical... or any other associations."
The provision of the Treaty of Paris was first sought to
be implemented through the first organic law of the Philippines.
President McKinley's Instructions to the (Taft) Philippine
Commission, dated April 7, 1900, ordered "that the provision of
the Treaty of Paris, pledging the United States to the protection
85 Ibid.,
citing Sanchez v. US, 216 U.S. 167.
86 W. Cameron Forbes, The PhilippineIslands (Harvard Univ. Press 1945;
1985 reprint), p. 143.

7Art. 7, Treaty of Peace between the United States and Spain, dated
December 10, 1898. See W.J. Pomeroy, American Neo-Colonialism: Its
Emergence in the PhilippinesandAsia (International Pub. 1970; reprint
1985); also, Owen Lynch, "Land Rights, Land Law, and Land
Usurpation: The Spanish Era," 63 Phil. L 82 (1988).
of all rights of property in the Islands, as well as the principles

of our own Government which prohibits the taking of private
property without due process of law, shall not be violated. ' 8
When the 'US Secretary of War sent the first
expeditionary forces to the Philippines in 1898, his orders to the
commanding general, General Merritt, provided that: "Under
this changed condition of things, the inhabitants, so long as they
perform their duties, are entitled to security in their persons and
property and in all their private rights and relations. 8 9
Also, the first civil governor of the Philippines, William
Howard Taft, was a staunch conservative who, before assuming
his duties in the Philippines in 1901, had earlier praised the US
Supreme Court for it "could be counted upon to uphold the
sacred character of private property," and declared that the US
Constitution made ours "a conservative government strongly
buttressed by written law against the attacks of anarchy,
socialism, and communism." 90
As Governor-General from 1900 to 1904, Taft enlisted
the Spaniards and the Hispanicized native elite as partners in
government by the Americans. He embarked on a policy of
attraction towards the Hispanic elite. This enabled the latter to
re-establish, and, in many cases, to improve upon, their
privileged position in the Philippines, thus re-entrenching a
feudal oligarchy.91
8 McKinley's instructions to the Taft Commission, reprinted in Maximo M.

Kalaw, The Development of PhilippinePolitics (Oriental Commercial Co.
1926).
89 Onofre D. Corpus, Roots of the FilipinoNation (Aklahi Foundation 1989),
vol.1, p. 36 1 .
90 Alpheus T. Mason, William Howard Taft, ChiefJustice (Simon and
Schuster 1965), pp. 43-44.
91See e.g., Owen Lynch, "The Philippine Colonial Dichotomy: Attraction
The Philippine Commission, which was the law-making

body of the colonial government, passed a law which provided
that Spanish could be the official language of all courts until
1919, when the elected Philippine legislature modified this by
passing a law providing that until January 1, 1930, both English
92
and Spanish should be the official languages of all courts.
Criminal Law: Lone Survivor in Public Law
The Spanish-imposed penal code remains the sole

survivor in -the onslaught of the common law in the area of
public law. The old penal code, which was based on the
Spanish Penal Code of 1870, was not superseded by the
occupying American colonial administrators. However, it was
altered by the Americans not only to render it consistent with
the political and civil rights enumerated in the organic laws, but
also to serve the purpose of the new sovereign. Thus, most of
the crimes defined under Book II, Title IIof the old penal code,
which are crimes against the fundamental laws of the state, had
to be either abrogated or modified. Inthe course of pacifying
the rebellious indios and setting up the colonial government, the
Philippine Commission passed the Treason, Insurrection and
Sedition Law (Act No. 292), the Libel Law (Act No. 277), the
law on perjury (Act No. 1697), the Customs Administrative Act
and Disenfranchisement," 63 Phil.LJ 112 (1988); Stanley Kamow, In our

Image: America's UnitedStates and the Philippines(Random House
1989); H.W. Brands, Bound to the Empire: The United States and the
Philippines(Oxford Univ. Press 1992).
92 Forbes, The PhilippineIslands, p. 143.
(Act No. 1180). 93 Most of these laws were later incorporated

into the Penal Code when it was revised in 1930.
The Spanish Penal Code of 1870, which is itself based
on the French Penal Code of 1810, belongs to the classical
school. 94 It is based on the old Roman law concept of free will,
that is, that men are rational and calculating beings who guide
their actions with reference to the principles of pleasure and
pain.95 Punishment is proportional to the nature and gravity of
96
the offense.
The retention of the old Spanish Penal Code founded on
the classical free will theory seem to be incongruous with the
widely-held Americans' perception of the indios as "ladrones"
or as "sullen peoples, half-devil and half-child",97 or, as
sardonically put by Peter Finley Dunne's Mr. Dooley, "poor,
dissolute, uncovered wretches, ye miserable, childish-minded
apes", who are "the most unlovable people".98 But it certainly
is consistent with the Americans' policy of "civilizing the
Filipinos with a "K_g".99 Obviously, the civilizing process was
carried out not only with the Krag but also with the Treason,
Sedition and Insurrection Law, the Libel Law, and the Penal
Code. Thus, during the colonial regime, the Philippine
Supreme Court, while acknowledging the primacy of freedom
of speech and assembly, used the "dangerous tendency test" to
93 Cuyugan, "Origin and Development of Philippine Jurisprudence", III Phil.

L.J. No. 6, (1917), p. 191 at 208.
94
95
Aquino, I Revised Penal Code (1987) p. 3.
Ibid.
%Ibid.
97 Rudyard Kipling, "The White Man's Burden: The United States and the
Philippine Islands" (poem).
98
Karnow, sura pp. 142, 170.
99 Id. at p. 139-160. The Krag-Jorgensen repeating rifle was then
manufactured in Norway, and was issued to the army regulars.
determine the seditious nature of speech and to convict accused

100
persons under the Treason and Sedition Law.
The Judicial System Follows the Fla2
It is perhaps fortunate, from the viewpoint of the

Philippine judiciary, that the military commander of the
American forces in 1899 was Major General Elwell Otis, who
graduated from Harvard Law School. Not only did he prescribe
municipal elections so that the local officials would cooperate in
the pacification campaign, he also renovated the Spanish-
created judiciary, putting native magistrates in the trial courts,
and he created the Supreme Court, placing Cayetano Arellano
as the chiefjustice. 10
The Americans superimposed common-law principles
on the existing civil-law system, and made sure that the former
would prevail. This was done during the colonial period by
appointing a majority of American judges in the Philippine
Supreme Court and in all inferior courts, and by importation of
American statutes into the Philippines.
The doctrine of stare decisis was adopted in the
Philippines on colonization by the Americans in 1899, who
appointed American judges at all levels of the Philippine
100 Peonle v. Perez 45 Phil. 599 (1923), where the accused, while debating
with another person, said: "And the Filipinos, like myself, must use
bolos for cutting off Wood's head for having recommended a bad thing
for the Philippines". The test used by the court is "when the intention
and effect is seditious, the constitutional guaranties of free speech and
assembly must yield punitive measures to maintain the prestige of duly
constituted authority, the supremacy of the constitution and the laws, and
the existence of the State".
101Karnow, sypra p. 153.
judiciary, and who imported American statutes wholesale into

the Philippines. Further, it was provided in the organic law of
the Philippines that decisions of the Philippine Supreme Court
might be reviewed by certiorariby the Federal Supreme Court
of the US. In that environment, there was no escape from the
grip of stare decisis, as the American judges had to look up to
American decisions for authorities, especially those in
jurisdictions from where statutes were borrowed wholesale, as
well as to decisions of the US Supreme Court.
The rationale for this version of stare decisis in the
Philippines has been restated by the Supreme Court, thus:
"The delicate task of ascertaining
the significance that attaches to a
constitutional statutory provision,
an executive order, a procedural
norm or a municipal ordinance is
committed to the judiciary. It thus
discharges a role no less crucial
than that appertaining to the other
two departments in the
maintenance of the rule of law.
To assure stability in legal
relations and avoid confusion, it
has to speak with one voice. It
does so with finality, logically and
rightly, through the highest
judicial organ, this Court. What it
says then should be definitive and
authoritative, binding on those
occupying the lower ranks in the
Birth of the Mestizo I 203
judicial hierarchy. They have to

defer and to submit. What was so
appropriately said by Justice
Laurel comes to mind: "A
becoming modesty of inferior
courts demands conscious
realization of the position that
they occupy in the interrelation
and operation of the integrated
10 2
judicial system of the nation."
Statutory Interpretation
The rules on interpretation of statutes used by common

law judges began to reshape the law of the land in the
Philippines. When the provisions of a statute need to be
interpreted, all the techniques and guidelines followed in
common-law courts are to be employed by the judges in an
attempt to discern the intent of the legislature. With respect to
statutes borrowed from American sources, Philippine courts
began to resort to American common-law jurisprudence to
understand the meaning of the terms employed in the statute.
The same rules were to be applied to statutes that date back to
the Spanish colonial period. By way of consolation to the civil
law, the views of civilian commentators, text writers, and
Spanish courts are also sometimes consulted.
Most of the concepts on "equity" in the Philippines are
seen from the perspective of American common law, especially
those on equitable remedies.
'0oBarrera v. B 34 SCRA 101 (1970).

The Philippine Supreme Court, then dominated by

Americans before 1935, justified its reliance on American
authorities:
...many of the rules, principles,
and doctrines of the common law
have, to all intents and purposes,
been imported into this
jurisdiction, as a result of the
enactment of new laws and the
organization and establishment of
new laws and the organization
and establishment of new
institutions by the Congress of the
United States or under its
authority; for it will be found that
many of these laws can only be
construed and applied through the
aid of the common law from
which they are derived, and that,
to breathe the breath of life into
many of these institutions,
recourse must be had to the rules,
principles and doctrines of the
common law under whose
protecting aegis the prototypes of
these institutions had their
1 03
birth.
103 Alzua v. Johnson 21 Phil. 308 (1912).

Retention of the Civil Code

Provisions on Persons and Proverty
The Americans retained the Spanish-imposed Civil Code

of 1889 based on the Code Napoleon, subject to the principles
and institutions recognized in the US Constitution. In a 1920
Philippine Supreme Court decision, the tribunal said that -
"This retention of the local

private law was merely in
accordance with the principles of
International Law in that regard.
However, by the mere fact of the
change in sovereignty, all portions
of that statute law which might be
termed political law were
abrogated immediately by the
change in sovereignty. Also, all
Spanish laws, customs and rights
of property inconsistent with the
Constitution and American
principles and institutions were
thereupon superseded ,104
Thus, although the Civil Code of 1889 was described by

a former American Governor General as "admirable and, in
later years, was to a great extent based on the Code of
104 In re Shoop, 43 Phil. 213 (1921); emphasis supplied.

Napoleon", 10 5 even parts of the Civil Code which were

inconsistent with American principles and institutions were
superseded. In 1920, it was observed in the Shoop case that
portions of the Civil Code of Spain had either been modified or
superseded by statutes passed by the Philippine Commission.
Understandably, Title I of the Code on citizenship was repealed.
Title II on status of natural and juridical persons was modified
by the Code of Civil Procedure and the Corporation Law. Title
IV on marriage was modified by the military administrator,
General Wesley Meritt, in the form of General Order No. 68.
Title V on paternity and filiation as well as Title VII on parental
authority, Title VIII on absence, Title IX on guardianship, Title
X on the family council, Title XI on emancipation on majority
age, were either repealed or modified by the Code of Civil
Procedure. On the law of property, which is Book Two and
Book Three of the Civil Code, the concepts of property,
ownership, possession, usufruct, wills, inheritance, intestate
succession, and executors, were slightly modified by , the
Code of Civil Procedure. Likewise, in Book IV of the Code, the
law on partition, obligations, contracts, purchase and sale, lease,
labor, carriers, partnership, agency, loan, deposit, bailments,
insurance, gambling, arbitration, pledge, mortgage, preference
of credit and prescription were either repealed or modified by
the Code of Civil Procedure.
It can be seen that the most significant changes in the
then existing Civil Code were provisions on property,
obligations, contracts, business organizations, credit
transactions, transportation, and banking and insurance
'05 W. Cameron Forbes, THE PHILIPPINE ISLANDS (1945; 1985 reprint)

p. 143.
transactions, all core activities of a business civilization like that

of America. The obsolete and antiquated legal concepts born
out of feudal Spain had to be overhauled to accommodate new
notions evolved out of a newly-industrialized United States.
The law had to follow the dominant ideology of the colonizer,
that is, American principles and institutions. An example would
be the interest in land shown by the Americans. The interest of
a feudal colonizer, like Spain, would certainly differ from the
interest of a liberal capitalist country like the US. Before the
imposition of the Civil Code of 1889, what really interested the
Spaniards in land was its political importance, which reflects
the feudal mentality of the old colonizer. This was not so with
the Americans. By the time they decided to annex the
Philippines, their interest in land was not so much political as it
was economic. Thus, the so-called Sugar Trust in the US was
the primary lobbyist which goaded President McKinley to
redefine his notion of Manifest Destiny. The sugar lobby had
properly focused on using the sugar estates in the Philippines as
their prospective plantations. The mining interests had heard of
tales of gold from the ornithologist Dean Worcester, and added
their voice for annexation. And the commercial centurions
looked at Luzon as a springboard for trade with China. Even
after the Americans had tightened their grip on the country, it
was the business group which organized, in 1912, the Philippine
Society, composed of American businessmen, bankers, and
others with economic interests, which lobbied in Washington to
block moves for independence of the colony, fearful that the
new Democratic president, Woodrow Wilson, who championed
Philippine independence, would carry out his election
16
promise. 0
And so land laws had to be modified from its civilian
roots to make it more consistent with the ruling ideas of a
business civilization. The civilian classification of property into
movables and immovables had to be modified, so that the new
law derived from the Anglo-American system would divide it
into property rights in land and property rights in movables.
This recognizes the difference between property and the subject
matter of property so as to lay the foundation for exchange, sale
or alienation of the subjects of property.
The new colonizers indeed intended to create Filipino
society in their own image, with the Americans as the ruling
elite. They improved the economy, constructed the
infrastructure of a modem civilization, expanded the markets,
exploited the natural resources of the islands, and stimulated
private enterprise through government initiatives. They evolved
patterns of trade and commerce that retarded economic
development of the islands, monopolizing importations and
opening up exportations to the mother country through
legislation passed in the US Congress like the Payne-Aldrich
Act of 1909 and the Underwood-Simmons Act of 1913, which
created a dependent economy lorded over by the Americans
with the Filipino ilustrados and mestizos as the "little brown
brothers". This is the ruling class cultivated by William
Howard Taft which came to rule the country up to the present.
106 Kamow, sura id. at 242.

ObliRations and Contracts
The notable common-law doctrines accepted in the

Philippines and blended into the civil law system are the
doctrines in the field of tort of proximate cause, negligence and
contributory negligence, reckless negligence, last clear chance,
vicarious liability, sovereign immunity, moral damages, loss of
profits, speculative profits, and mitigation of damages. In some
decided cases, our courts have applied American tort
doctrines, 10 7 like last clear chance,10 8 requirements of duty,109
sovereign immunity, 110 and nuisance and trespass. 111
The same observation applies with regard to contracts.
For example, our Civil Code provides that "the principles of
estoppel are hereby adopted insofar as they are not in conflict
with the provisions of this Code, the Code of Commerce, the
Rules of Court, and special laws."" 2
As for laches, we now follow the common law rule that
equity will not aid a plaintiff whose unexcused delay, if the suit
3
were allowed, would be prejudicial to the defendant. 1
In contracts, our Supreme Court has also held that the
"consideration" of American law and the "causa" of the civil
law, although somewhat different in theory, have equivalent
effects in practical jurisprudence. 1 4 The common-law
"consideration" is narrower than "causa"; consideration may
107Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 320 (1907).

°8 Picart v. Smith 37 Phil. 809 (1907).
1090Olendorfv. Abrahamson. 38 Phil. 585 (1918).
l0Metropolitan Transportation Service v. Paredes, 79 Phil. 819 (1947).
111 Hidalgo Enterprises v. Balandan, 91 Phil. 490 (1952).
112 CC, Art. 1432.
113 Manila Railroad Co. v. Luzon Stevedoring Co., 100 Phil. 145 (1956).
1
4Santos v. Reyes. 10 Phil. 125 (1908).
consist in some benefit to the promissor or in some detriment to

115
the promisee; causa is the essential reason of the contract.
But with regard to acceptance, our Civil Code provides that
"acceptance made by letter or telegram does not bind the offerer
except from the time that it came to his knowledge. The
contract, in such a case, is presumed to have been entered into
' 116
the place where the offer was made."
The 1950 Civil Code has adopted the rule on "discharge
by breach" in contracts especially in sales of goods, as the
Philippines borrowed from the provisions of the Uniform Sales
Act of the United States. For instance, it is provided that
"where the goods have not been delivered to the buyer, and the
buyer has repudiated the contract sale, or has manifested his
inability to perform his obligations thereunder, or has
committed a breach thereof, the seller may totally rescind the
contract of sale by giving notice of his election to do so to the
17
buyer."'
An example of hybridization is the mixing of the
concept of a judicious paterfamilias in Roman law with the
common-law concept of the reasonable man."' The standard of
a good father of a family, which is the standard laid down by
Roman-based Civil Code in the matter of determining the
vicarious liability of an employer, has been re-defined in terms
of the common-law concept of a reasonable man. For instance,
in the selection of one's driver, the employer should not be
satisfied with the mere possession on the part of the driver of a
professional driver's license, but he should carefully examine
115Lui v. Ocampo. 55 Official Gazette 1778.
116
CC, Art. 1319.
117 CC, Art. 1597.
11 Picart v. S 37 Phil. 768 (1918).
the applicant for employment as to his qualifications,

experience, and record of service, and he should examine the
applicant's background and ask him to submit to police
clearances and to undergo not only a physical examination, but
also a driving examination consisting of theoretical and
practical tests.
Another example of mixing civilian with common law
concepts is found in the American-imposed Code of Civil
Procedure (1902), which modified some concepts in the civil
law of succession. For instance, an "heir" under the Civil Code
means not only a relative of the deceased who takes the
property of one dying intestate, but also the person, relative or
not, who takes what might be called the residuary estate by will.
In the Code of Civil Procedure, "heir" is used in the first sense
only, and in connection with intestate estates. As therein used,
an heir is always a relative. A person taking by will is called
(whether an heir or not) a "devisee" when real property is
inherited, and "legatee" when personalty is taken. Under the
former Spanish Civil Code, an heir succeeded to the rights and
obligations of the deceased and became owner of the property;
under the Code of Civil Procedure, the heir is not personally
liable for the debts and obligations of the deceased so that he
cannot alienate or charge it free of such debts unless these are
extinguished.' 9
A third example is the mixing of the concepts of surety
and guaranty under our Civil Code. Under the old Spanish
Code, these two concepts were incorporated under the single
term, "'fianza",but under the present Code, we have the concept
of surety where the principal as well as his surety bind
119 Suiliong and Co. v. Chio Taysan. 12 Phil. 13 (1908).

themselves in an absolute promise to pay and subrogation is

made easy by the common law, and the concept of guaranty
where the guarantor is just a conditional and collateral obligor
who pays only in the case of insolvency of the principal debtor.
Forced heirship and free testation is recognized by the
existing Civil Code of the Philippines (Book III, Title IV). For
instance, Article 888 of our Civil Code provides that "the
legitime of legitimate children and descendants consists of one-
half of the hereditary estate of the father and of the mother. The
latter may freely dispose of the remaining half, subject to the
rights of illegitimate children and of the surviving spouse as
hereinafter provided."
The concept of trusts, borrowed from common law, has
been modified to adapt it to the civilian system, is now
embodied in Book IV, Title V of the Civil Code of the
Philippines, which adopts the English trust in its original form,
with a few modifications.
An example of a modification is the concept of "family
trust", where the revenues from a corpus of properties are
distributed annually, or at longer or shorter periods, among the
120
relatives of the founder of the trust.
Likewise, the principle of promissory estoppel has been
fused to the concept of causa in contracts, as may be seen from
this definition of the term by the Philippine Supreme Court,
thus:
"An estoppel may arise from the
making of a promise, even though
without consideration, if it was
intended that the promise should
'20Barreo v. Tuaso 50 Phil. 925 (1927).

be relied upon, and if a refusal to

enforce it would be virtually to
sanction the perpetration of a
fraud which would result in other
12 1
injustice."
Commercial Law
The commercial law of any country is always reshaped

by the ideology of the dominant economy. This can be seen
from the development of mercantile law during the medieval
period. At that time, though the Roman Law may have been the
foundation of the law merchant, when the old caravan routes of
the early Middle Ages were superseded by the development of
the Mediterranean and Atlantic sea routes and by the increase in
shipping in the Baltic, this led to the development of new
customary law to deal with the new conditions in trade. The
new codes showed the increasingly maritime character of the
newer mercantile law. 122 This was the nature of the Code of
Commerce which Spain imposed on the Philippines in 1888.
It is in the area of commercial law that the attempt of
the new colonizers to create Philippine society in the image of
America is most evident. The Philippine Commission, and later
the Philippine National Assembly, borrowed wholesale
American laws on corporations, negotiable instruments,
securities, insurance, banking, transportation, trademarks and
copyright, unfair competition, chattel mortgage, insolvency and
bankruptcy, and bulk sales. Thus, the Corporation Law (Act
121Ramos v. Central Bank 41 SCRA 588 (1971).

122 Jencks, THE BOOK OF ENGLISH LAW (1929), pp. 26-27.
No. 1459), the Bankruptcy Act (Act No. 1956), Negotiable

Instruments Act (Act No. 2031), Warehouse Receipts Law (Act
No. 2137), Public Utilities Act (C.A. 146), Insurance Law (Act
No. 2427), Usury Law (Act No. 2655), Salvage Law (Act No.
2616), and Irrigation Act (Act No. 2153) superseded the Code
of Commerce of Spain and other existing mercantile laws. All
of these new laws are the foundation of a capitalist economy
that forms the core of a business civilization. As America tried
to create a new legal culture, it had to impose its ideology and
its laws even in an underdeveloped economy which was not
quite ready to adjust to the needs and ethos of a modem
civilization. This confirms the observation of Prof. P.V.
Fernandez as to the primary theme of the goals and practices of
colonizing countries from the industrialized North:
"As industrial nations
such as Great Britain, Germany
and the US became colonizers
(displacing the feudal colonizers
such as Spain and Portugal) the
dominating considerations
became economic. Colonies
provided sources of raw
materials, markets for finished
goods, settlements for surplus
population of the colonizers, and
investments or business
123
opportunities for colonials."'
123 p.V. Fernandez,"The Emergent World Federal Capitalist System and Its
Implication for Constitutionalism", in LAW AND SOCIETY:
COLLECTED WORKS OF PERFECTO V. FERNANDEZ (2005) p. 346.
It therefore no surprise that, in the Philippines at the turn

of the twentieth century, the commercial laws, as well as the
laws on property rights, obligations and contracts, and on
business organizations and transactions, had to be adjusted to
the ideology of a business civilization like America. The United
States found the laws imposed by a feudal colonizer like Spain
inappropriate for a capitalist economy. As one of Taft's aide in
the Philippines observed, they had inherited a regime "so
antiquated and disorganized as not to admit of patching or
repair". 124 That included the laws on business and commerce
imposed by the Spaniards. In an industrialized society, its
commercial laws and its laws on property simply reflect the
ideology of the ruling elite. As observed by a sociologist:
Legal rules find validity in prior

hierarchy, that is to say, when
capitalist and wealthy individuals
are in power it is no surprise that
law both confirms and supports
this arrangement by providing
rules on private property to
protect their claims from those of
others ..... Quite simply, law
begins to reflect the values and
premises which confirm and
legitimize the then current
125
distribution of resources.
'24 Kamow, id. At 198.

25
' Malloy, LAW AND ECONOMICS: A COMPARATIVE APPROACH TO
THEORYAND PRACTICE (1990), p. 161.
As a result of the almost complete overhauling of

Philippine commercial law and the indiscriminate borrowing
from US laws, the judiciary had to rely on American and
sometimes English authorities in interpreting and applying said
laws. Eventually, as observed by the then American- dominated
Philippine Supreme Court, a Philippine "common law" was
evolved based on Anglo-American jurisprudence. "The
practical result is that the past twenty years have developed a
Philippine Common Law or case law based exclusively, except
where conflicting with local customs and institutions, upon
Anglo-American Common Law", said the high tribunal in
1920.126
126 In re Shoop, supra id. at 246-247.

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CONQUEST AND PENETRATION:

On the night of February 15, 1898, while the USS Maine

'Stanley Karnow, IN OUR IMAGE: AMERICA'S EMPIRE IN THE

on the question of whether his country would take or leave the

civilize the natives according to the constitutional standards of

ilustrados relished their role as "little brown brothers" to the

Constitutionalism and Common Law

In 1900, President William McKinley instructed the then

Supreme Court. Even the manner of its interpretation in the

23Act of July 1, 1902, 32 Stat. 369.

returns." To the vested interests in the U.S., this decision meant

There is no mistaking this provision for substantive due

That the notion substantive of due process was

Constitutional Law: Hegemony of Police Power

The exigencies of asserting American authority and of

law was a just and reasonable exercise of the power of the

Philippine Court upheld the contention of the petitioner, saying:

At this juncture, the Supreme Court began to veer away

The political mood of the twenties in. the United States

44 Yanco v. Board of Public Utility Commissioners, 36 Phil. 116, 126

election "than the maintenance of the Supreme Court as the

to fix the price of rice." In declaring both the executive order

In the same decision, the Court emphasized the private nature of

55 Act No. 2868 sec. 1 (1919).

distinguished this from the wheat and flour commandeered by

shop or place of labor of any

The Court agreed with US Supreme Court Justice Sutherland

under a constitution which

Thus, the constitutional doctrines born out of the

other than English, Spanish, or any local dialect. 67 As expected,

deprives them of something indispensable to the carrying of

Crossbreeding of the two systems of law started

Procedure, was issued "to safeguard the civil liberties of the

71 192 U.S. 585 (1904).

blundered.7 9 Our Supreme Court ruled that the constitutional

Retention of Private Law and Custom Law

The pre-existing private laws in the Philippines were left

and the laws governing associations, adoption, absence, and

contentment, surrounded by civilization to which they are

82 Justin Holbrook, "Legal Hybridity in the Philippines: Lessons in Legal

sort of political and religious independence from the colonizers.

84In re Shoop, 43 Phil. 213 (1921).

new laws for the Philippines

An American author who served as Governor-General,

1985 reprint), p. 143.

of all rights of property in the Islands, as well as the principles

8 McKinley's instructions to the Taft Commission, reprinted in Maximo M.

The Philippine Commission, which was the law-making

Criminal Law: Lone Survivor in Public Law

The Spanish-imposed penal code remains the sole

and Disenfranchisement," 63 Phil.LJ 112 (1988); Stanley Kamow, In our

(Act No. 1180). 93 Most of these laws were later incorporated