This impunity for crimes is, to my understanding, very fatal, not only because of the encouragement which it gives on that account to criminality, but also because of the fear which gobernadorcillos and alcaldes have in arresting the guilty, for they know that they will be soon liberated and will soon take vengeance on them by robbing them, cutting down their trees, and burning their places of business. An employe of estimable qualities in the department of taxes told me that once grown tired in a certain province of seeing that no one dared to arrest a thief who had terrified the entire village, he himself took the trouble to waylay and seize him in the very operation of committing a theft. He had him bound, and sent him to the alcalde with the general complaint. In a few weeks he saw him again in the village and had to reckon with him. I have been in the estate of Buena-Vista in the outskirts of which live very many robbers. However, they do not steal there, but they go to do that in other places, bringing there afterward horses, buffaloes, and whatever they can lay their hands on. The manager does not dare to wage war against them or to denounce their thefts, although he knows them. One night when I was there at twelve o’clock, appeared a cavalry troop sent from the neighboring province of Pampanga by Alcalde Urbina and commanded by Lieutenant Lao. With them they brought several persons who had been robbed, and took them before the official. He had a list of many whom he was to arrest. It had already been given to the justice of the village. We amounted to four or five Spaniards in that place. One of those who live there came within a few minutes to tell us secretly that those who were to do the arresting had already advised those who were to be arrested so that they might get out of the way, and so that no one could be caught. That person and the manager were silent in order not to compromise themselves, and I did the same, because the evil was already done, and in order not to abuse the confidence which they had in me. In fact, the officer and his men, and the guides, went away without having arrested a single one. A fortnight after another official, named Dayot, who knows the language of the country well, returned. Warned by what had happened the first time, he went directly to the houses where his guides took him; and, consequently, he seized some of them. Later he came to the estate and asked us for a very notorious fellow who was said to be absent. We assured him that we had seen that man less than an hour before. I advised Dayot to have the soldiers put aside their arms and uniforms, and send them dressed like the natives together with the guides, and if they surprised anyone to take him to the barracks; since, to imagine that the justice would aid him to arrest the criminals was to imagine something that could not be. In fact, he did that, and within three days he marched away taking five or six prisoners with him. A great state of consternation reigned throughout that district, which was good evidence of the moral condition of the inhabitants. In a few months I asked and learned that they were back already and in quiet possession of their homes. One day I was talking in Manila to the regent of the Audiencia, Don Matías de Mier, about that system of impunity which I had observed in the islands. That gentleman remarked to me: “It is not possible to take severe measures here, Señor Mas, for it is necessary to govern here with mildness.” I praise and esteem most sincerely the benevolent ideas and the good heart of Señor Mier, but it seems to me that his words might be answered somewhat by those of Jeremias Bentham:[4] “How many praises are wasted on mercy! It has been repeated, time and time again, that that is the first virtue of a sovereign. Surely if crime consists only in an offense to one’s self-love, if it is no more than a satire which is directed against him or his favorites, the moderation of the prince is meritorious. The pardon which he grants is a triumph obtained over himself! But when one treats of a crime against society, the pardon is not an act of clemency, it is a downright prevarication.... Every criminal who escapes justice threatens the public safety and innocence is not protected by being exposed to become the victim of a new crime. When a criminal is absolved all the crimes that he can perpetuate are committed by his hands.” In no army are there so many executions as in that in which slight faults are disregarded. How many charges can be laid to the door of the one who carried away by a poorly understood charity, contributes to the increase, in any society, of assault, theft, assassination, tears, and executions. “Every pardon granted to a criminal,” says Filangieri,[5] “is a crime committed against humanity.” I cannot conceive how there is anyone who can imagine that the exercise of kindness to evil doers is useful or agreeable to the good. I believe, on the contrary, that those are lamented by the people who are unsafe in their houses while they are paying contributions to the government which is obliged to protect them. [Other reflections of a similar nature follow.]
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.
The Leyes de Indias, compiled in 1754, and all the previous decrees and royal orders before that time still rule in Filipinas, in addition to the decrees and edicts of the governor-general. Of all this there is nothing, or very little, printed. The advocates generally know the laws in force by tradition and hear-say, but when they need any of the laws they have to look for it in the house of some friend, or, if not that, in the secretary’s office of the government, whence very frequently it has disappeared, or in the office of the fiscal, or that of the intendant; because some orders are communicated by grace and justice, and others by the treasury or by other ministries. He who has no relatives or is new in the country is ignorant of the rules in force, or has not the means of acquiring them. Besides so far as they are not overthrown by the Leyes de Indias the laws of the Siete Partidas have as much force as do the latest Recopilación,[6] Roman law, royal and old law, and, in fact, all the confused mass of the Spanish codes. Consequently, it is a vast sea in which are found abundantly the resources necessary to mix up matters and stultify the course of justice. In English India, a book is printed annually of all the orders which have been communicated to the tribunals and governors. This forms a collection which is entitled The Regulations, which is now being translated into the language of the natives by order of the government.
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.