The most famous Tulisán within living memory was a Chinese half-caste named Juan Fernandez, commonly known as Tancad (“tall,” in Tagálog) because of his extraordinary stature. His sphere of operations was around Bulacan, Tárlac, Mórong, and Nueva Ecija. He took part in 21 crimes which could have been proved against him, and doubtless many more. A man of wonderful perception and great bravery, he was only 35 years old when he was captured in Bulacan Province by the Spanish Captain Villa Abrille. Brought before a court-martial on the specific charge of being the chief actor in a wholesale slaughter at Tayud, which caused a great sensation at the time, he and ten of his companions were executed on August 28, 1877, to the immense relief of the people, to whom the very name of Tancad gave a thrill of horror.
No one experienced in the Colony ever thought of privately prosecuting a captured brigand, for a criminal or civil lawsuit in the Philippines was one of the worst calamities that could befall a man. Between notaries, procurators, barristers, and the sluggish process of the courts, a litigant was fleeced of his money, often worried into a bad state of health, and kept in horrible suspense for years. It was as hard to get the judgement executed as it was to win the case. Even when the question at issue was supposed to be settled, a defect in the sentence could always be concocted to re-open the whole affair. If the case had been tried and judgement given under the Civil Code, a way was often found to convert it into a criminal case; and when apparently settled under the Criminal Code, a flaw could be discovered under the Laws of the Indies, or the Siete Partidas, or the Roman Law, or the Novisima Recopilacion, or the Antiguos fueros, Decrees, Royal Orders, Ordenanzas de buen Gobierno, and so forth, by which the case could be re-opened. It was the same in the 16th century (vide p. [56]).
I knew a planter in Negros Island who was charged with homicide. The judge of his province acquitted him, but fearing that he might again be arrested on the same charge, he came up to Manila with me to procure a ratification of the sentence in the Supreme Court. The legal expenses were so enormous that he was compelled to fully mortgage his plantation. Weeks passed, and having spent all his money without getting justice, I lent his notary £40 to assist in bringing the case to an end. The planter returned to Negros apparently satisfied that he would be troubled no further, but later on, the newly-appointed judge in that Island, whilst prospecting for fees by turning up old cases, unfortunately came across this one, and my planter acquaintance was sentenced to eight yearsʼ imprisonment, although the family lawyer, proceeding on the same shifty lines, still hoped to find defects in the sentence in order to reverse it in favour of his client.
Availing oneʼs self of the dilatoriness of the Spanish law, it was possible for a man to occupy a house, pay no rent, and refuse to quit on legal grounds during a couple of years or more. A person who had not a cent to lose could persecute another of means by a trumped-up accusation until he was ruined, by an “informacion de pobreza”—a declaration of poverty—which enabled the persecutor to keep the case going as long as he chose without needing money for fees.[4] A case of this kind was often started at the instigation of a native lawyer. When it had gone on for a certain time, the prosecutorʼs adviser would propose an “extra-judicial arrangement,” to extort costs from the wearied and browbeaten defendant.
About the year 1886 there was a cause célèbre, the parties being the firm of Jurado & Co. versus the Hong-Kong and Shanghai Banking Corporation. The Bank had agreed to make advances on goods to be imported by the firm in exchange for the firmʼs acceptances. The agreement was subject to six monthsʼ notice from the Bank. In due course the Bank had reason to doubt the genuineness of certain documents. Mr. Jurado was imprisoned, but shortly released on bail. He was dismissed from his official post of second chief of Telegraphs, worth ₱4,000 a year. Goods, as they arrived for his firm, were stored pending litigation, and deteriorated to only a fraction of their original value. His firm was forced by these circumstances into liquidation, and Mr. Jurado sued the Bank for damages. The case was open for several years, during which time the Bank coffers were once sealed by judicial warrant, a sum of cash was actually transported from the Bank premises, and the manager was nominally arrested, but really a prisoner on parole in his house. Several sentences of the Court were given in favour of each party. Years after this they were all quashed on appeal to Madrid. Mr. Jurado went to Spain to fight his case, and in 1891 I accidentally met him and his brother (a lawyer) in the street in Madrid. The brother told me the claim against the Bank then amounted to ₱935,000, and judgement for that sum would be given within a fortnight. Still, years after that, when I was again in Manila, the case was yet pending, and another onslaught was made on the Bank. The Court called on the manager to deliver up the funds of the Bank, and on his refusal to do so a mechanic was sent there to open the safes, but he laboured in vain for a week. Then a syndicate of Philippine capitalists was formed to fleece the Bank, one of its most energetic members being a native private banker in Manila. Whilst the case was in its first stages I happened to be discussing it at a shop in the Escolta when one of the partners, a Spaniard, asked me if I would like to see with my own eyes the contending lawyers putting their heads together over the matter. “If so,” said he, “you have only to go through my shop and up the winding back staircase, from the landing of which you can see them any day you like at one oʼclock.” I accepted his invitation, and there, indeed, were the rival advocates laughing, gesticulating, and presumably cogitating how they could plunder the litigant who had most money to spend. At one stage of the proceedings the Bank specially retained a Spanish lawyer of great local repute, who went to Madrid to push the case. Later on Mr. Francis, Q.C., was sent over to Manila from Hong-Kong to advise the Bank. The Prime Minister was appealed to and the good offices of our Ambassador in Madrid were solicited. For a long time the Bank was placed in a most awkward legal dilemma. The other side contended that the Bank could not be heard, or appear for itself or by proxy, on the ground that under its own charter it had no right to be established in Manila; that, in view of the terms of that charter, it had never been legally registered as a Bank in Manila, and that it had no legal existence in the Philippines. This was merely a technical quibble. Several times when the case was supposed to be finally settled, it was again re-opened. Happily it may now be regarded as closed for ever.
A great many well-to-do natives have a mania for seeing their sons launched into the “learned professions”; hence there was a mob of native doctors who made a scanty living, and a swarm of half-lawyers, popularly called “abogadillos,” who were a pest to the Colony. Up to the beginning of the 18th century the offices of solicitors and notaries were filled from Mexico, where the licences to practise in Manila were publicly sold. After that period the colleges and the university issued licences to natives, thus creating a class of native pettifogging advocates who stirred up strife to make cases, for this purpose availing themselves of the intricacies of the law.
The Spanish-Philippine Criminal Law Procedure was briefly as follows:—(1) The Judge of Instruction took the sumaria, i.e., the inquiry into whether a crime had been committed, and, if so, who was the presumptive culprit. It was his duty to find the facts and sift the case. In a light case he could order the immediate arrest of the presumptive delinquent; in a grave case he would remit it. (2) In the Court of First Instance the verbal evidence was heard and sifted, the fiscal, or prosecuting attorney, expressing his opinion to the judge. The judge would then qualify the crime, and decide who was the presumptive culprit. Then the defence began, and when this was exhausted the judge would give his opinion. This court could not acquit or condemn the accused. The opinion on the sumaria was merely advisory, and not a sentence. This inquiry was called the “vista”; it was not in reality a trial, as the defendant was not allowed to cross-examine; but, on the other hand, in theory, he was not called upon to prove his innocence before two courts, but before the sentencing court (Audiencia) only. The case would then be remitted with the sumaria, and the opinion of the Court of First Instance, to the Audiencia, or Supreme Court, for review of errors of law, but not of facts which remained. The Audiencia did not call for testimony, but, if new facts were produced, it would remit back the sumaria to the lower court, with the new written testimony added to the autos (documents in the case). These new witnesses were never confronted with the accused, and might never be seen by him, and were not cross-examined. If no new facts were elicited, the record of the lower court would be accepted by the Audiencia, errors of law being the only point at issue, and this court might at once pass sentence. In practice the Audiencia usually treated the finding of the lower court as sentence (not merely opinion), and confirmed it, if no new testimony were produced and there were no errors of law. But, although the opinion of the lower court might be practically an acquittal, the Audiencia might find errors of law, thus placing the accused twice in jeopardy. If the case were remitted back, in view of new testimony, it finally returned to the Audiencia for decision, nine judges being required to give their opinion in a grave case, so that if the Court of First Instance and five judges of the Audiencia found the accused guilty, there was a majority against him. The sentencing court was always the Audiencia. If the sentence were against the accused, a final appeal could be made, by “writ of error,” to the Supreme Court of Spain, whose decision, however, rested not on facts, but on errors of law.
The (American) Insular Government tacitly admitted that the Spanish written law was excellent, notwithstanding its fulfilment being dilatory. The Spanish Penal Code has been adopted in its general application, but a new code, based on it, was in course of compilation in 1904. The application of the Spanish Code occasionally evolves some curious issues, showing its variance with fundamental American law. For instance, in September, 1905, a native adulteress having been found by her husband in flagrante delicto, he stabbed her to death. The Spanish law sustains the husbandʼs right to slay his faithless consort and her paramour, in such circumstances (vide p. [80]), but provides that the lawful slayer shall be banished from the country. The principle of this law is based on Roman law, human instinctive reasoning, and the spirit of the law among the Latin nations of Europe. American law assumes this natural act of the husband to be a crime, but whilst admitting the validity of the Spanish Code in these Islands, the American bench was puzzled to decide what punishment could be inflicted if the arraigned husband committed contempt of court by thereafter returning to his native land.
[1] This was not included in Army Estimates, but in Civil Government. Officers from Captain (inclusive) upwards “In expectation of Service” and “In excess of Active Service requirements,” received only four-fifths of ordinary pay.