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EN BANC
G.R. No. 2808 September 30, 1905
FELIX BARCELON, petitioner,
vs.
DAVID J. BAKER, JR., AND JOHN DOETHOMPSON, respondents.
Fisher and Cohnfor petitioner.
Attorney-GeneralWilfleyfor respondents.
JOHNSON, J.:
This was an applicationby FredC. Fisher andCharles C. Cohn,attorneys at
law, on behalf of theplaintiff, FelixBarcelon, for a writ of habeas corpus. The
said application alleges, among otherthings, the following:
(1) That the saidapplicant is detained and restrained ofhis liberty
at the townof Batangas,in the Province ofBatangas, Philippine
Islands.
(2) That the personwhodetainedandrestrainedthesaid
applicant of his liberty is John DoeThompson, captainofthe
Philippines Constabulary,acting underand in pursuanceofthe
orders of DavidJ. Baker, Jr., colonel ofthePhilippines
Constabulary.
(3) That the detention and restraintofthesaidapplicant is wholly
without legal authoritytherefor. [Herefollows a statement ofthe
allegedcauses ofarrest and detention ofthesaid applicantby the
said defendants.]
(4) That the detention and restraintofthesaidapplicant is not
under or by virtueofany process issued by any courtor
magistrate,nor byvirtueofany judgment or order ofany court of
record, nor of any courtnor ofany magistratewhatsoever.
(5) That there has notexisted during any ofthetimes inthis
petitionmentioned, and there does not nowexist,is saidProvince
ofBatangas,Philippineislands, nor inanypart thereof, rebellion,
insurrection, or invasion, nor any ofthem,in any formor degree;
and that allthecourts oflaw, organizedand providedby law for
the ProvinceofBatangas,have been at allofthe times
hereinbeforementioned inthefullandcompleteexerciseoftheir
functions, without interruption ofany natureor kind.
Whereforeyour petitioners pray thata writ of habeas corpus be
issued, requiring the said JohnDoeThompson,captain ofthe
Philippines Constabulary,andDavidJ. Baker,jr., colonel ofthe
Philippines Constabulary,to bring beforethis honorablecourt the
person ofthesaid FelixBarcelon,and thatafter a fullhearing in
accordance withlaw thesaid Felix Barcelonbe liberatedand
released from allrestraint anddetention, and thatrespondents
be enjoinedfrom any and allinterferencewith the personal
liberty ofsaid FelixBarcelon,and to pay the costs ofthis
proceeding.(Signed) FredC. Fisher.Charles C. Cohn. (The
foregoing facts wereduly swornto by the saidapplicants.)
The court, after considering theforegoing petition,madeanorder on the3rd
day ofAugust, 1905, directing thesaidDavid J. Baker,Jr.,and thesaid John
Doe Thompson to appearbefore this courton the4th day ofAugust,1905, at
9 o'clock a.m., toshow causewhy thewritof habeas corpus should not be
granted inaccordancewiththeprayer ofsaid petition.
At 9 o'clock a.m.on the4th day ofAugust the respondents, by the Attorney-
GeneralofthePhilippineIslands, through GeorgeR. Harvey, representing the
latter,filed their answer to theforegoing petition. By reason ofthefact that
the saidanswer failed todisclosewhetheror notthesaid Felix Barcelon was
actually detained anddeprivedofhis liberty bythesaid respondents,the
court directed that said answer beamended, stating withoutequivocation
whether or not Felix Barcelonwas actually detained by the saidrespondents,
which amendedanswer, among otherthings, contained the following
allegations:
(1) That the writof habeas corpus should notissueon the
application filed herein, because the court is without jurisdiction
or authority togrant theprivilegeofthe writof habeas corpus in
the ProvinceofBatangas,for thereasonthat onJanuary 31, 1905,
the Governor-General,pursuant toa resolutionand request ofthe
PhilippineCommission, suspendedsaidwrit intheProvinces of
Cavite and Batangas,in accordance withtheprovisions ofsection
5 ofthe act ofcongress known as "ThePhilippine Bill,"the
PhilippineCommissionand theGovernor-Generalbasing such
suspensionuponthefact thatcertain organized bands ofladrones
in said provinces werein openinsurrectionagainst the
constituted authorities; and the saidbands, orparts ofthem,and
some oftheir leaders, werestill inopen resistanceto the
constituted authorities. Thesaidresolution oftheCommission
and the said proclamationofthe Governor-General arein the
words following:
"RESOLUTION OF THE PHILIPPINECOMMISSION DATED JANUARY 31, 1905.
"Whereas certain organized bands ofladrones existin the
Provinces ofCaviteandBatangas whoarelevying forced
contributions upon thepeople, whofrequently requirethem,
under compulsion, to jointheirbands, andwho killor maimin the
most barbarous manner those who fail torespondto their
unlawful demands, andarethereforeterrifying thelaw-abiding
and inoffensive peopleofthoseprovinces; and
"Whereas thesebands havein severalinstances attacked police
and Constabulary detachments, and arein openinsurrection
against theconstituted authorities;and
"Whereas itis believed that thesebands havenumerous agents
and confederates living within the municipalities ofthe said
provinces; and
"Whereas, because of theforegoing conditions,thereexists a
state ofinsecurity andterrorism among thepeoplewhichmakes
it impossible intheordinary way to conductpreliminary
investigations beforejustices ofthepeaceandotherjudicial
officers: Now,therefore,
"Be it resolved, That,thepublic safety requiring it, the Governor-
Generalis hereby authorizedand requested tosuspend the writ
ofhabeas corpus in theProvinces ofCavite and Batangas.
EXECUTIVEORDER } "MANILA, January31,1905.
NO. 6. }

2. "Whereas certain organized bands ofladrones existin the
Provinces of CaviteandBatangas whoarelevying forced
contributions upon thepeople, whofrequently requirethem,
under compulsion, to jointheirbands, andwho killor maimin the
most barbarous manner those who fail torespondto their
unlawful demands, andarethereforeterrifying thelaw-abiding
and inoffensive peopleofthoseprovinces; and
"Whereas thesebands havein severalinstances attacked police
and Constabulary detachments, and arein openinsurrection
against theconstituted authorities,and itis believed that thesaid
bands havenumerous agents and confederates living withinthe
municipalities ofthesaidprovinces; and
"Whereas, because oftheforegoing conditions there existsa state
of insecurity andterrorism among the peoplewhichmakes it
impossiblein the ordinary way toconduct preliminary
investigations beforethejustices ofthepeaceand otherjudicial
officers:
"In the interest ofpublic safety, itis hereby orderedthat the writ
ofhabeas corpus is fromthis datesuspended intheProvinces of
Cavite and Batangas."(Signed) LUKEE. WRIGHT,
"Governor-General."
(2) Not waiving the questionofjurisdiction, the respondents state
that it is truethatFelixBarcelon was detainedin the month of
April, 1905, by order ofColonelDavidJ. Baker, Jr., assistantchief
of the Philippines constabulary,andthatthesaidBarcelon is now
detained under the surveillance ofCaptain W.E. Thompson, senior
inspector of Constabulary, in theprovince ofBatangas.
By this answer the respondents admitthatthey are detaining the body ofthe
said FelixBarcelon, anddeny theright ofthis court toinquire intothe
reasons thereforby virtueofthesaid resolution ofthe Philippine commission
and the executiveorder of the Governor-General, issuedby authority ofthe
same, suspending theprivilege ofthewrit of habeas corpus inthesaid
Provinces of CaviteandBatangas.
Thus the question is squarely presented whether or not the judicial
department of theGovernmentmay investigatethefacts upon whichthe
legislativeand executive branches oftheGovernmentacted inproviding for
the suspensionand inactually suspending theprivilege ofthe writ of habeas
corpus in said provinces. has theGovernor-General, withtheconsentofthe
Commission, therightto suspendtheprivilege ofthewrit of habeas corpus?
Ifso, did the Governor-General suspendthewritof habeas corpus in the
Provinces of CaviteandBatangas in accordance withsuch authority?
A paragraphof section5 of theact ofCongress ofJuly 1,1902, provides:
That the privilegeofthewrit of habeas corpus shallnotbe
suspended, unless when incases ofrebellion, insurrection,or
invasion the publicsafety may requireit,in either ofwhich events
the samemay besuspended bythePresident, or bytheGovernor-
Generalwith theapprovalofthePhilippineCommission,
wheneverduring such period the necessity for suchsuspension
shall exist.
This provision of theact of Congress is the only provisiongiving the
Governor-General andthePhilippine commission authorityto suspendthe
privilegeof thewritof habeas corpus. No questionhas been raisedwith
referenceto the authority ofCongress to confer this authority upon the
Presidentor theGovernor-Generalofthese Islands, withtheapproval ofthe
PhilippineCommission.
This provision of theact of Congress makes twoconditions necessary in order
that the Presidentor theGovernor-Generalwith the approvalofthe
PhilippineCommissionmay suspend the privilegeofthewriteofhabeas
corpus. They areas follows:
(1) When thereexists rebellion, insurrection, or invasion; and
(2) When public safety may require it.
In other words,in orderthat theprivilegeofthewrit of habeas corpus may
be suspended, theremustexist rebellion,insurrection, or invasion,andthe
public safety mustrequireit.This factis admitted, butthequestion is,Who
shall determine whether there exists a stateofrebellion, insurrection,or
invasion, andthat byreasonthereofthepublic safetyrequires the
suspensionof the privilegeofthewriteof habeas corpus?
It has been argued andadmitted that the Governor-General,withthe
approvalof thePhilippine Commission, has discretion, when insurrection,
rebellion,or invasionactually exist,to decidewhetherthepublicsafety
requires the suspension of the privilegeofthe writof habeas corpus; butthe
fact whether insurrection, rebellion, orinvasion does actually existis an open
question, which the judicial departmentoftheGovernment may inquire into
and that the conclusions ofthelegislativeand executive departments (the
PhilippineCommissionand theGovernor-General) ofthegovernment are not
conclusiveupon thatquestion.
In other words,it is contended thatthejudicialdepartment ofthe
Government may consider anapplication for the writof habeas corpus, even
though the privileges ofthesamehave been suspended, inthemanner
provided by law, for the purposes oftaking proofuponthequestion whether
there actually exists a stateofinsurrection, rebellion,or invasion.
The applicants hereadmit that ifa stateofrebellion, insurrection,or invasion
exists, and the publicsafety is indanger, thenthePresident, orGovernor-
Generalwith theapprovalofthePhilippineCommission, may suspendthe
privilegeofthewritof habeas corpus.
Inasmuch as thePresident, or Governor-General withtheapproval ofthe
Philippinecommission, cansuspend theprivilegeofthe writof habeas
corpus only under the conditions mentionedin thesaid statute, it becomes
their duty tomake an investigation oftheexisting conditions in the
Archipelago,or any partthereof, to ascertainwhether there actually exists a
state ofrebellion, insurrection, or invasion, and that the publicsafety
requires the suspension ofthe privilegeofthe writof habeas corpus. When
this investigation is concluded, thePresident,or theGovernor-General with
the consentofthe Philippinecommission, declares that there existthese
conditions, and that thepublicsafety requires thesuspension oftheprivilege
ofthe writ of habeas corpus, can the judicialdepartmentofthe Government
investigatethesamefacts and declarethatno suchconditions exist?
The act ofCongress,abovequoted, wisely provides for the investigation by
two departments ofthe Government — the legislativeand executive — of
the existing conditions,andjointaction by thetwo beforetheprivilegeofthe
writ of habeas corpus can besuspended inthese Islands.
Ifthe investigation and findings ofthe President, or the Governor-General
with the approval ofthePhilippineCommission,are not conclusiveandfinal
as against the judicial departmentoftheGovernment,then every officer
whose dutyit is tomaintainorder andprotect the lives and propertyofthe
people may refuse toact,andapply to the judicial departmentofthe
Government for another investigation and conclusionconcerning the same
conditions, to theendthat theymay be protected againstcivilactions
resulting fromillegalacts.
Owing to conditions attimes,a stateofinsurrection, rebellion,or invasion
may arise suddenly and may jeopardize the very existenceoftheState.
Suppose,for example, that one ofthethickly populated Governments
situatednear this Archipelago,anxious to extendits power and territory,
should suddenly decidetoinvadetheseIslands, and should, withoutwarning,
appearin oneoftheremote harbors witha powerfulfleet andat oncebegin
to land troops. Thegovernoror military commanderofthe particular district
or provincenotifies theGovernor-Generalby telegraphofthis landing of
troops and thatthepeople ofthe districtare incollusionwith suchinvasion.
Might not the Governor-Generaland the Commission accept this telegram as
sufficientevidence andproofofthe facts communicatedand at oncetake
steps, even to theextent ofsuspending the privilegeofthewritof habeas
corpus, as might appear tothem tobe necessary torepelsuchinvasion? It
seems that allmen interested in themaintenance andstability ofthe
Government wouldanswer this question intheaffirmative.
But suppose some one,whohas been arrested inthedistrict upon the
ground thathis detentionwould assist in restoring order and inrepelling the
invasion, applies for the writof habeas corpus, alleging thatno invasion
actually exists; may thejudicialdepartment ofthe Government call the
officers actuallyengaged inthefield beforeitand away from their posts of
duty for the purpose ofexplaining andfurnishing proofto it concerning the
existenceor nonexistence ofthefacts proclaimedto existby thelegislative
and executivebranches ofthe State? Ifso, then thecourts may effectually tie
the hands oftheexecutive, whose special duty it is to enforcethelaws and
maintainorder,until theinvaders haveactually accomplished their purpose.
the interpretationcontendedfor here by theapplicants, so pregnant with
detrimentalresults,could not havebeenintended by the Congress ofthe
United States when itenacted the law.
It is the duty ofthelegislativebranch ofthe Government to makesuchlaws
and regulations as willeffectually conservepeaceand goodorder and
protect thelives andproperty ofthe citizens ofthe State.It is theduty ofthe
Governor-General totake such steps as hedeems wiseandnecessaryfor the
purpose ofenforcing such laws.Every delay and hindranceand obstacle
which prevents a strictenforcement oflaws undertheconditions mentioned
necessarily tendto jeopardize publicinterests andthesafety ofthewhole
people. Ifthejudicialdepartmentofthe Government,or any officer inthe
Government,has a rightto contest theorders ofthePresident or ofthe

3. Governor-General under theconditions abovesupposed,beforecomplying
with such orders, thenthehands ofthePresident ortheGovernor-General
may be tieduntilthevery object oftherebels orinsurrectos or invaders has
been accomplished.But itis urged thatthepresident, ortheGovernor-
Generalwith theapproval ofthePhilippineCommission, mightbe mistaken
as to the actual conditions; thatthelegislative department — thePhilippine
Commission — might,by resolution,declare after investigation, thata state
ofrebellion,insurrection, or invasion exists,and thatthepublic safety
requires the suspension of the privilegeofthe writof habeas corpus, when,
as a matter of fact, no such conditions actually existed; thatthePresident,or
Governor-General acting upontheauthority ofthePhilippinecommission,
might by proclamationsuspend the privilegeofthe writof habeas
corpuswithout there actually existing theconditions mentioned intheact of
Congress. In other words, the applicants allegein their argument insupport
oftheir applicationfor thewritof habeas corpus, thatthelegislative and
executive branches of the Government might reacha wrong conclusionfrom
their investigations of theactualconditions,or might,through a desireto
oppress and harass thepeople, declare that a state ofrebellion, insurrection,
or invasion existed and thatpublic safetyrequiredthesuspension ofthe
privilegeof thewritofhabeas corpus whenactuallyand in factno such
conditions didexist. We cannot assumethatthelegislative andexecutive
branches willact ortake any action basedupon suchmotives.
Moreover it cannot beassumed thatthelegislative andexecutivebranches
ofthe Government, withall the machinery which those branches haveat
their command for examining intotheconditions inanypart ofthe
Archipelago,will failto obtainall existing informationconcerning actual
conditions. It is the duty of the executive branchoftheGovernment to
constantly inform the legislativebranch oftheGovernmentofthecondition
ofthe Union as to the prevalence ofpeaceor disorder.The executivebranch
ofthe government, throughits numerous branches ofthe civil andmilitary,
ramifies everyportion of theArchipelago, and is enabled therebyto obtain
information fromevery quarter andcorner oftheState. Can the judicial
department of theGovernment, with its verylimitedmachinery for the
purpose of investigating generalconditions, beany more sureofascertaining
the true conditions throughout the Archipelago,or in any particular district,
than the other branches of theGovernment? We think not.
We are of the opinion thattheonly questionwhich this departmentofthe
Government cango intowith referenceto theparticular questions submitted
here are as follows:
(1) Admitting thefact thatCongress had authority to conferuponthe
Presidentor theGovernor-Generaland the PhilippineCommissionauthority
to suspend the privilegeof thewritof habeas corpus, was suchauthority
actually conferred? and
(2) Did the Governor-General and the PhilippineCommission, acting under
such authority, act inconformancewith such authority?
Ifwe find that Congress did confer suchauthority and that theGovernor-
Generaland thePhilippineCommission actedin conformancewith such
authority, thenthis branch oftheGovernment is excluded from an
investigation of thefacts upon which theGovernor-Generaland the
PhilippineCommissionacted,andupon whichthey basedtheresolution of
January31,1905, and the executive order oftheGovernor-Generalofthe
same date. Under the form ofgovernment establishedinthe Philippine
Islands, one department of the Government has no poweror authorityto
inquire into the acts of another, which acts are performedwithin the
discretionof the other department.
Upon an examinationof thelaw weconclude:
First. Thattheparagraphofsection5, above quoted, oftheact ofCongress
ofJuly 1, 1902, confers upontheGovernor-Generaland thePhilippine
Commission the right tosuspend the privilegeofthewritof habeas
corpusunder theconditions therein named.
Second. ThatthePhilippine Commission,acting within the discretionwhich
such act of Congress confers upon them, didauthorize the Governor-
General, by its resolution ofJanuary 31, 1905, tosuspend the privilegeofthe
writ of habeas corpus in the manner and formindicated inthesaidexecutive
order ofthe Governor-GeneralofJanuary31,1905.
The said resolutionof the PhilippineCommissionhas the effectoflaw for the
purposes for which itwas enacted. Thejudicial department ofthe
Government may examineeverylaw enacted bythelegislative branchofthe
Government for the purposeofascertaining:
(a) Whether or not suchlaw came withinthesubject-matterupon whichthe
legislativebranch of theGovernmentmight legislate; and
(b) Whether theprovisions ofsuchlaw werein harmony with the authority
given the legislature.
Ifthe judicialbranch ofthe Government finds —
(a) That the legislativebranch oftheGovernmenthad authority tolegislate
upon the particular subject; and
(b) That the particular law containedno provisions inexcess ofsuch
department, thenthatinvestigation,or thatconclusion, conclusively
terminates theinvestigationby this department oftheGovernment.
We baseour conclusions that this application should bedenied upon the
following facts:
First. Congress had authority to provide that thePresident,or theGovernor-
General, with theapproval ofthePhilippine Commission, mightsuspend the
privilegeofthewritof habeas corpus in cases ofrebellion,insurrection, or
invasion, when thepublic safety might requireit.
Second. ThatthePhilippine Commission,acting within this power, had
authority to pass theresolution above quoted, ofJanuary 31, 1905, after an
investigation oftheconditions.
Third. That by virtueofsaid act ofCongress,togetherwithsaid resolutionof
the Philippinecommission, the Governor-General hadauthority to issue the
said executiveorder ofJanuary 31, 1905,suspending theprivilegeofthe writ
ofhabeas corpus.
Fourth. That the conclusionset forth inthesaid resolutionandthesaid
executive order, as to the fact that thereexistedin the Provinces ofCavite
and Batangas open insurrection against theconstituted authorities,was a
conclusionentirely within thediscretion ofthelegislative andexecutive
branches oftheGovernment, after aninvestigationofthe facts.
Fifth. That onebranch oftheUnited States Governmentin the Philippine
Islands has no right tointerfereor inquire into, for thepurposeofnullifying
the same, the discretionary acts ofanother independent departmentofthe
Government.
Sixth. Whenevera statutegives to a person or a department ofthe
Government discretionary power, to beexercisedby himor it, upon his or its
opinion ofcertain facts, such statute constitutes him or itthesoleand
exclusivejudge oftheexistenceofthosefacts.
Seventh. Theact ofCongress gave tothePresident, ortheGovernor-General
with the approval ofthePhilippineCommission,thesolepowerto decide
whether a stateofrebellion,insurrection, or invasion existedin the
PhilippineArchipelago, andwhether ornot the publicsafety required the
suspensionofthe privilegeofthewritofhabeas corpus.
Eighth. This powerhaving been givenand exercisedin the manner above
indicated, wehold thatsuch authority is exclusively vestedin the legislative
and executivebranches ofthe Government and their decision is finaland
conclusiveupon this department ofthe Government and upon allpersons.
Happily weare not withouthighauthority to support the foregoing
conclusions. This is notthefirst timethis same question has been presented
in one form or anotherto the judicialdepartmentofthe Government ofthe
United States, as wellas totheGovernment ofthe various States ofthe
Union.
The same general question presented herewas presented to theSupreme
Court ofthe UnitedStates in the caseofMartin vs. Mott,in January,1827.
An act ofCongress of1795 provided —
That whenever theUnited States shallbe invadedor be in
imminent danger ofinvasionfrom any foreignnation orIndian
tribe, it shallbelawfulfor thePresident oftheUnited States to
call forth such number ofthemilitia ofthe State orStates most
convenientto theplaceofdangeror scene ofaction, as he may
judge necessary to repel such invasion, and toissuehis orders for
that purposeto such officeror officers ofthemilitia as he shall
think proper.
In this case(Martinvs. Mott) the questionwas presented to the court
whether or not the President's actionin calling out the militia was conclusive
against thecourts.The SupremeCourt oftheUnited States, in answering this
question, said:
The power thus confidedby Congress tothePresident is,
doubtless, ofa very high and delicatenature.Afree peopleare
naturallyjealous oftheexercise ofmilitary power; andthepower
to call themilitia intoactual service is certainly felt tobe one of
no ordinary magnitude.But itis nota power whichcan be
executed withoutcorresponding responsibility.It is, in its terms,a
limitedpower,confined tocases ofactual invasion,or
ofimminent danger ofinvasion. Ifit bea limitedpower,the
question arises, By whom is the exigency tobe adjudged ofand
decided? is thePresident thesoleand exclusivejudge whether
the exigency has arisen,or is it tobeconsidered as an open
question, uponwhich every officer towhomtheorders ofthe

4. Presidentareaddressed, maydecide for himself,andequally
open to be contested by every militiaman who shallrefuseto
obey the orders ofthePresident? We are allofthe opinion that
the authority todecide whether the exigencyhas arisen belongs
exclusively tothe President and his decision is conclusive upon all
other persons. Wethink that this constructionnecessarily results
from the natureofthe power itselfandfrom the manifestobject
contemplated by the actofCongress. Thepower itselfis to be
exercised upon suddenemergencies, upongreat occasions of
state andunder circumstances whichmay bevitalto the existence
of the Union. ... Ifa superior officer has a rightto contest the
orders of thePresident, upon his owndoubts as totheexigency
having arisen, it must beequally the right ofevery inferior officer
and soldier ... . Such a course would besubversive ofall discipline
and exposethebestdisposedofficer tothechances oferroneous
litigation. Besides, inmany instances,theevidence upon which
the Presidentmight decidethatthereis imminent dangerof
invasion mightbe ofa naturenotconstituting strict technical
proof, or the disclosureoftheevidence mightrevealimportant
secrets of statewhichthepublic interestand evensafety might
imperiously demand to bekept in concealment.
Whenever thestatutegives a discretionary power toany person,
to be exercised by him upon his own opinion ofcertain facts, itis
a sound rule of construction thatthestatuteconstitutes himthe
sole andexclusivejudgeofthe existenceofthosefacts. And in the
presentcaseweare allofopinion thatsuchis thetrue
construction of the actof1795.It is no answer that suchpower
may be abused,for thereis no powerwhichis not susceptibleof
abuse. (Martin vs. Mott, 12Wheat., 19(25 U.S.);
Vanderheyden vs. Young, 11Johns.,N.Y., 150.)
JusticeJosephStory, for manyyears a member oftheSupremeCourtofthe
United States, in discussing the question whomay suspend the privilegeof
the writ of habeas corpus, undertheConstitution oftheUnitedStates, said:
It would seem, as the power is given toCongress to suspend the
writ of habeas corpus in cases ofrebellion,insurrection, or
invasion, that the rightto judge whether the exigency has arisen
must conclusively belong tothat body.(Story ontheConstitution,
5th ed., sec.1342.)
JusticeJames Kent, for many years a justiceofthesupremecourt ofthe State
ofNew York, in discussing thesame question, cites thecase ofMartin vs.
Mott, and says:
In that caseit was decided andsettled by the SupremeCourt of
the UnitedStates that itbelonged exclusively to thePresidentto
judge when the exigency arises inwhich hehad authority, under
the Constitution, to call forth the militia, and that his decision was
conclusiveupon allother persons. (Kent's Commentaries, 14th
ed., vol. 1, bottom p.323.)
John Randolph Tucker,for many years a professor ofconstitutionaland
internationallaw inWashington and LeeUniversity, in discussing this
question said:
By an act passed in1795Congress gave tothePresident power to
call out the militia for certain purposes, andby subsequentacts,
in 1807, power was given to him tobe exercised whenever he
should deemit necessary,for thepurposes statedin the
Constitution;andtheSupremeCourt(UnitedStates) has decided
that this executivediscretionin making thecall (for Statemilitia)
could not bejudicially questioned. (Tucker ontheConstitution,
Vol. II, p. 581.)
John Norton Pomeroy, an eminent lawwriteruponconstitutionalquestions,
said:
In Martin vs. Mott it was decidedthatunder the authority given
to the President by the statuteof1795, calling forth themilitia
under certain circumstances,thepower is exclusively vested in
him to determinewhether thosecircumstances exist;andwhen
he has determinedby issuinghis call, no court can questionhis
decision."(Pomeroy's Constitutional Law,sec.476.)
Henry CampbellBlack, a well-knownwriteron theConstitution,says:
By an early actofCongress it was providedthatin caseofan
insurrectionin any State againstthegovernment thereof, it shall
be lawful for the Presidentofthe UnitedStates,on applicationof
the legislatureofsuch State,or oftheexecutive(when the
legislaturecan not beconvened), to call forth sucha numberof
the militia of any otherStateor States as may beapplied for,as
he may judgesufficient to suppress such insurrection. By this act
the power ofdeciding whethertheexigency has arisenupon
which the Government oftheUnited States is bound tointerfere
is given to the President. (Black's Constitutional Law, p. 102.)
Judge Thomas M. Cooley,in discussing theright ofthejudicialdepartment of
the Government tointerferewith the discretionary action oftheother
departments oftheGovernment,in his work onconstitutional law, said:
Congress may confer upon thePresidentthepowerto call them
(the militia) forth,and this makes him theexclusivejudge whether
the exigency has arisen for the exerciseofthe authority and
renders onewho refuses toobey thecall liable topunishment
under militarylaw. (Cooley's Principles ofConstitutionalLaw, p.
100.)
But it may be arguedby thosewhocontend for thecontrary doctrine, to wit,
that the acts ofthe Governor-General, withtheapproval ofthe Philippine
Commission, arenotconclusive upon the courts and thatnone ofthe
foregoing citations are exactly in point, thatnone ofthesecases or authors
treat ofa case exactlyliketheone presented. Wearefortunate,however,in
being ableto cite,in answer tothat contention,thecase ofHenry William
Boyle, where exactlythesamequestionwas presentedto the supremecourt
ofthe State ofIdaho, which theapplicants presenthere andwherethe
courts held the doctrineofthe cases applied.In thecase ofBoyle, hehad
been arrested after theprivilege ofthewrit of habeas corpus hadbeen
suspended. Heapplied for a writ ofhabeas corpus to thesupreme courtof
Idaho, alleging, among otherthings, inhis application:
First. That"no insurrection, riot,or rebellion nowexists inShoshoneCounty;"
and
Second. That"theGovernor has no authorityto proclaimmartial lawor
suspend thewrit of habeas corpus."
In reply to this contentionon thepartofthe applicant, Boyle, the courtsaid:
Counselhave argued ably and ingeniously upon thequestionas to
whether the authority to suspendthewrit of habeas corpus rests
with the legislative andexecutivepowers oftheGovernment, but,
from our views ofthis case, thatquestion cuts no figure. Weare
ofthe opinionthatwhenever, for the purposeofputting down
insurrectionor rebellion, the exigencies ofthecase demand it,
with the successfulaccomplishmentofthis end inview, it is
entirely competentfor theexecutiveor for themilitaryofficer in
command,iftherebe such, either to suspend thewrit or
disregard itifissued. Thestatutes ofthis State (Idaho) makeitthe
duty ofthe governor,whenever sucha stateor conditionexists as
the proclamation ofthegovernor shows does existin Shoshone
County, to proclaim such localityin a state ofinsurrection andto
call in theaidofthe military ofthe Stateor oftheFederal
Government tosuppress such insurrectionand reestablish
permanently the ascendency ofthe law. It would bean absurdity
to say that theactionoftheexecutive, undersuch circumstance,
may be negatived and setatnaughtby thejudiciary, or that the
action oftheexecutivemay beinterferedwithor impugned by
the judiciary.Ifthe courts areto bemade a sanctuary, a seat of
refuge whereunto malefactors may fallfor protection from
punishment justly due for the commission ofcrime they willsoon
ceaseto bethat palladium oftherights ofthecitizen so ably
describedby counsel.
On applicationfor a writ of habeas corpus, thetruth ofrecitals of
allegedfacts in a proclamation issuedby thegovernor proclaiming
a certain county to beina stateofinsurrectionand rebellion will
not be inquired into orreviewed. Theactionofthe governorin
declaring Shoshone County to beinstate ofinsurrection and
rebellion,and his action incalling to his aidthemilitary forces of
the UnitedStates for thepurposeofrestoring good order and the
supremacyofthe law, has theeffect toput in force,to a limited
extent, martiallaw in said county. Such action is notin violation of
the Constitution, butin harmony with it, being necessary for the
preservation ofgovernment. Insuch casetheGovernmentmay,
like an individual acting in self-defense, takethosesteps
necessary topreserve its existence.Ifhundreds ofmencan
assemble themselves and destroy property andkilland injure
citizens, thus defeating theends ofgovernment, andthe
Government is unableto takealllawfuland necessary steps to
restorelaw and maintain order, the Statewill thenbe impotentif
not entirelydestroyed,and anarchy placed inits stead.

5. It having been demonstrated tothesatisfactionofthegovernor,
after somesix orseven years ofexperience, that theexecution of
the laws in Shoshone County throughtheordinary and
establishedmeans andmethods was rendered practicably
impossible, itbecamehis duty to adoptthemeans prescribed by
the statutefor establishing insaid county thesupremacy ofthe
law and insuring thepunishmentofthoseby whoseunlawfuland
criminal acts such a condition ofthings has been brought about;
and it is not theprovinceofthecourts tointerfere, delay, or place
obstructions in the path ofduty prescribed by lawfor the
executive,butrather torender himall theaid and assistancein
their power, in his efforts to bring abouttheconsummation most
devoutly prayedfor by every good, law-abiding citizen inthe
State. (In re Boyle,45L.R.A., 1899, 832.)
The doctrinethatwhenever theConstitution or a statutegives a
discretionary power to any person, tobe exercised by him upon his own
opinion of certain facts, such personis to beconsidered the sole and
exclusivejudge of theexistenceofthosefacts, has been recognized, notonly
by the Supreme Courtof the UnitedStates but bypractically all ofthe
supremecourts of thedifferent States,and has never been disputedby any
respectable authority. Thefollowing cases arecited in support ofthis
doctrine:
Martin vs. Mott (1827), 12Wheat.,19(25 U. S. Rep.).
Luther vs. Borden(1849), 7How., 44, 77.
Wilkes vs. Dinsman(1849), 7 How., 130,131.
Murray vs. Hoboken,etc., Co. (1855), 18How.,280.
United States vs. Speed (1868), 8 Wall., 83.
Mullan vs. UnitedStates (1890),140U.S.,245.
Nishimura Ekiu vs. United States (1891), 142 U.S., 660.
Lem Moon Sing vs. United States (1894), 158 U.S., 538.
Ex parte Field (1862), 5 Blatch., 77,81 (Fed. CaseNo. 4761).
Allen vs. Blunt, 3 Story, 745(Fed.CaseNo. 216).
Gould vs. Hammond, 1 McAll., 237,239(Fed. Case5638).
United States vs. Packages (1862), 27 Fed. Case,288,289.
United States vs. Cement (1862), 27Fed.Case, 293.
United States vs. Cotton (1872), 27Fed. Case,325, 328.
United States vs. Tropic Wind,28Fed.Case, 221.
In re Day, 27 Fed. Rep., 680.
Hammer vs. Mason, 24 Ala.,485.
People vs. Pacheco(1865), 27 Cal., 223.
Porter vs. Haight(1873),45 Cal., 639.
EvansvilleandC. Ry. Co. vs Evansville, 15Ind., 421.
Koehler vs. Hill, 60 Ia.,566.
People vs. Wayne (1878), 39Mich.,20.
State vs. Town ofLime(1877), 23 Minn.,526.
People vs. Parker, 3 Nebraska, 432.
Kneedler vs. Lane (1863), 45Penn.St., 292.
In re LegislativeAdjournment(1893),18 RhodeIsland, 834; 22
L.R.A., 716.
Chapin vs. Ferry (1891), 3 Washington,396; 28Pac.Rep., 758; 15
L.R.A., 120.
Druecker vs. Solomon, 21Wis.,621; 94 Am. Dec., 571.
People vs. Bissell(1857), 19Ill., 229, 232,233.
Sutherlandvs. Governor (1874) 29 Mich.,320, 330.
Ambler vs. Auditor-General(1878), 38 Mich.,746, 751.
State vs. Warmoth (1870), 22La. An. Rep., 1; 13Am. Rep.,126.
Jonesboro,etc., Co. vs. Brown (1875), 8 Baxter(Tenn.) 490; 35
Am. Rep., 713.
In the case of theUnited States vs. Packages,abovecited, thecourt, in
discussing the authority of thejudicial department oftheGovernmentto
interferewith thediscretionary powers ofthe executive andlegislative,said:
The doctrineinvolved has been fully discussed in severalcases decided by
this courtduring the lastfifteenmonths, andwas virtually settled long ago by
the UnitedStates Supreme Court. The judiciary, under the Constitution,can
not declarewar or makepeace. It is clothed with nosuchpower,andcan not
be clothed with it. Whatever poweris vested by theConstitutionin one
department of theGovernmentcan notbe usurped byanother. Ifoneshould
wholly refuseto act,or should undertake todivest itself, or abdicateits
legitimate functions,it would by no means follow thatanotherdepartment,
expressly limited to specificduties, wouldthereby acquire ungranted
powers. Theabdicationof executive functions by theexecutive, for instance,
would not constitute thejudicial the executivedepartment ofthecountry;
nor would a failureor refusal ofthelegislative topass needed statutes
constitutetheexecutivethe law-making power. Each departmenthas its true
boundaries prescribedby theConstitution, andit cannot travelbeyond
them. (United States vs. Ferreira (1851), 13 How., 40; Little vs. Barreme
(1804), 2 Cranch, 170.)
The condition ofpeaceor war,publicor civil, in a legalsense,
must be determined bythepoliticaldepartment, notthejudicial.
The latteris bound by the decision thus made. Theact of1795
and the act ofJuly 13, 1861,vests thePresidentwiththepowerto
determinewhen insurrection exists, and towhat extentit exists.
The United States Constitution vests Congress with the power "to
provide for calling forththemilitia toexecutethelaws ofthe
Union, to suppress insurrection, andrepelinvasion; to declare
war ... and makerules concerning captures on land and water."In
the execution ofthatpower, Congress passedtheact cited above.
By the act of1795theSupreme Courtsays: "The power of
deciding whether the exigency hadarisenupon whichthe
Government oftheUnited States is boundto interfere,is given to
the President."... After thePresident has acted,is a circuit court
ofthe United States authorized to inquire whether his decision
was right? could the court, while the parties wereactually
contending inarms for thepossession ofthe government, call
witnesses before itand inquirewhichpartyrepresenteda
majorityofthe people? ...Ifthe judicial power extends so far, the
guaranty containedin the Constitution oftheUnited States is a
guaranty ofanarchy,andnotoforder. yet ifthis right does not
reside in thecourts whentheconflictis raging; ifthe judicial
power is at thattime bound to follow thedecisionofthepolitical
(departmentoftheGovernment), it mustbe equallybound when
the contestis over. At allevents,it (thepowerto decide) is
conferred upon him (the President) by theConstitutionand laws
ofthe United States,and mustthereforebe respected and
enforced inits judicialtribunals. (Luther vs. Borden (1849), 7
How., 43, 44; Martinvs. Mott (1827), 12Wheat., 29-31.)
The same doctrinehas been uniformly maintainedfrom the commencement
ofthe Government. Theabsurdityofany other rule is manifest. Ifduring the
actualclash ofarms the courts were rightfully hearing evidence as to thefact
ofwar, and, either with or withoutthesaid juries, determining thequestion,
they should havepowerto enforce their decisions. In caseofforeign conflicts
neither belligerent wouldbelikely to yield to thedecision;and, incase of
insurrection, theinsurgents would notceasetheir rebellion inobedienceto a
judicial decree. Inshort, thestatus ofthecountry as to peaceor war is legally
determined by the political(department oftheGovernment) andnot by the
judicial department. Whenthedecisionis madethecourts areconcluded
thereby, andbound toapplythelegalrules which belong to that condition.
The same power whichdetermines theexistenceofwar orinsurrection must
also decide whenhostilities have ceased — thatis, when peaceis restored. In
a legal sensethe stateofwar or peaceis nota question in pais for courts to
determine. It is a legalfact, ascertainableonly from thedecision ofthe
politicaldepartment.(The Fortuna (1818), 3 Wheat.,236; United States vs.
Palmer (1818), 3 Wheat., 610; Nuestra Señora, etc. (1819), 4 Wheat., 497;
Santissima Trinidad(1822),7 Wheat., 283; Rose vs. Himely (1806), 4 Cranch,
241; Foster vs. Neilson (1829), 2 Peters,253.)
Under the act ofCongress ofJuly 13, 1861,thePresident oftheUnited
States,on the16thday ofAugust, 1861,proclaimed thattheStateof
Tennesseewas in a stateofinsurrection.The courts, in discussing the rightof
the Presidentto decideupon the necessities ofsuch proclamationand the
period within whichit shouldcontinue, said:
The legal status thus determinedmust remain so long as the
condition ofhostilities continues. He (the President) has never
made a counterproclamation,nor has peacebeen officially
announced.As a legalcondition thatstatus (ofinsurrection) is
independent ofactual daily strifein arms. Alegal conditionof
hostilities may existlong after the lastbattlehas been fought
betweentheopposing armies. That condition(ofinsurrectionor
rebellion) ceases whenpeace is concluded through competent
authority; notbefore. ... Withinany constructionwhichcould be
very well given tothePresident's proclamation,no partofthat
State (Tennessee) maintains as yeta loyal adhesion totheUnion
and Constitution. It is the duty ofthePresident,however,to
decide thatpoint. Untilhe declares to thecontrary, the court
must hold that the legal condition ofhostilitycontinues. The
exceptions intheproclamation,sofar as made bythePresident,
courts can and must enforce.But ifitbe correct thatby theterms

6. of that proclamation thePresidentintended todevolve onthe
courts theduty ofdetermining judiciallythestatus ofa State or
part of a State by an inquiryinto its loyalty, orits occupation from
time to time by theUnitedStates forces irrespective ofa decision
thereon by the executive, still courts couldnot thenacquirethe
power. The limits upon their constitutionalandlegal functions
could not thus be enlarged. Political power could notbe so
delegatedto thecourts. They (the courts) cannotbe charged with
any duties not judicial; "judicialpower"aloneis invested inthem
(the courts) under the Constitution.(UnitedStates vs. Packages
(1862), 27 Fed. Case,288, 289.)"
In the case of Druecker vs. Solomon (21Wis.,621; 94 Am. Dec., 571,576,
577) the supremecourtof Wisconsin, inan action for false imprisonmentfor
the arrest anddetentionduring a stateofinsurrection,etc.,thecourt cites
and approves of thedoctrine laid down by theSupreme Courtofthe United
States inthecase of Martin vs. Mott(12 Wheat., 19) and holds that the
action of thepolitical departmentoftheGovernment in suchcases is final
and conclusive againstthejudicialdepartment.
John Marshall, for many years ChiefJusticeofthe SupremeCourt ofthe
United States, in discussing the rights ofonedepartmentoftheGovernment
to interferewith thediscretionary powers ofanother, said,in the caseof
Marbury vs. Madison ( [1803], 1 Cranch, 137,164):
By the Constitution ofthe United States thePresidentis invested
with certain importantpolitical powers, intheexerciseofwhich
he has to usehis owndiscretion,and is accountable only to his
country in his politicalcharacter,andto his own conscience....
The subjects are political; they respectthenation,not individual
rights, and, being intrusted to the executive,thedecisionofthe
executive is conclusive. Theapplication ofthis remark willbe
received by adverting totheact ofcongress for establishing the
department of foreign affairs. This officer, as his duties were
prescribed by thatact,is to conformprecisely to the willofthe
President; heis themere organby whom thatwillis
communicated. Theacts ofsuch an officer, as an officer, can
never be examinable bythecourts. ... The conclusionfrom this
reasoning is that wheretheheads ofdepartments arethepolitical
or confidentialagents ofthe executive,merely to executethewill
of the Presidentor rather toact incases in which the executive
possesses a constitutional ora legal discretion, nothing canbe
more perfectly clear than thattheiracts are only politically
examinable.
In the case of Rice vs. Austin (19Minn., 103) the supremecourtofMinnesota
held that"thejudicial andexecutivedepartments ofthegovernment are
distinct and independent andneitheris responsibleto theother for the
performanceof its duties and neither can enforcetheperformanceofthe
duties of theother."It may besaid that in Minnesota this decision was based
upon a constitutionalprovision. This is true, but the fact that thepeopleof
the Stateof Minnesota,by constitutional provision prohibited one
independent department ofthegovernment frominterfering orattempting
to administer theduties of another, all themorereenforces thedoctrine
contended for here. Many oftheStates do permitthejudicialdepartment
by mandamus to direct theexecutivedepartment toperform purely
ministerial duties. InMinnesota, however, thejudicialdepartment will not
attemptto coercetheperformanceofeven ministerial duties on the part of
the executive.
In the case of Luther vs. Borden (7 How., 44) itwas heldthatthedecision and
determinationof matters ofa purely political character by theexecutiveor
legislativedepartmentof the Government was binding on every other
department of theGovernmentandcouldnot bequestionedby a judicial
tribunal. Thedangers and difficulties which wouldgrow out of theadoption
ofa contrary ruleare byChiefJustice Taney in this caseclearly and ably
pointed out. Chief JusticeTaney, referring tothepowergiven to the
Presidentwith referenceto theright todecide whether itwas necessary,on
account of a possibleinvasion, to call out the militia, said:
By this act(actofCongress of1795) thepower ofdeciding
whether the exigency hadarisenuponwhichtheGovernmentof
the UnitedStates is bound tointerfereis given tothePresident. ...
After the President has actedandcalled outthemilitia,is a circuit
court of the United States authorizedto inquirewhetherhis
decision is right? Could the court, while the parties wereactually
contending inarms for thepossession ofthe government, call
witnesses before itand inquirewhichpartyrepresentedthe
majorityof the people? Ifit could, then itwould becometheduty
ofthe court (provided itcameto theconclusion thatthePresident
had decidedincorrectly) to discharge thosewho werearrested or
detained bythetroops in theserviceoftheUnitedStates or the
governmentwhichthePresident was endeavoring tomaintain. If
the judicial power extends so far, theguaranty contained inthe
Constitution ofthe United States is a guaranty ofanarchyandnot
oforder. Yet ifthis right does notresidein the courtwhen the
conflict is raging, ifthejudicialpower is at that timebound to
follow the decision ofthepolitical, it mustbe equallybound when
the contestis over. . . .
It is said thatthis power inthe President is dangerous to liberty
and may be abused. All power may beabused ifplaced in
unworthy hands; but itwould bedifficult, wethink, topoint out
any other hands in which this power would bemore safe, andat
the sametimeequally effectual. When citizens ofthesameState
are in arms against each other, and the constituted authorities
unable toexecutethelaws,theinterpositionofthe UnitedStates
must be promptor itis oflittlevalue.The ordinary courseof
proceedings inthecourts ofjusticewouldbe utterly unfit for the
crisis, and the elevated office ofthe President, chosenas heis by
the peopleoftheUnited States, andthehighresponsibility he
could not fail tofeelwhen acting in a caseofsomuch moment,
appearto furnish as strong safeguards against the willfulabuse of
power as humanprudenceand foresight couldwell provide. At all
events it is conferred uponhim bythe Constitutionandlaws ofthe
United States and must, therefore, be respected and enforced in
its judicialtribunals.
ChiefJustice Taney here cites approvingly thecase ofMartin vs. Mott.
In the case ofFranklinvs. StateBoardExaminers (23 Cal., 173,178) the
supremecourt ofCalifornia decided —
That the politicaldepartmentofa Stategovernment is the sole
judge ofthe existence ofwar or insurrection, and,when it
declares either oftheseemergencies to exist, its action is not
subjectto review orliableto becontrolled by the judicial
department oftheState.
In this casethecourtcitedthecases ofMartinvs. MottandLuther vs.
Borden.
This samedoctrine was again recognized bythesupremecourtofCalifornia
in the caseofthe People vs. Pacheco (27Cal., 175,223), notonly resting its
decision upon the caseofFranklinvs. StateBoard ofExaminers butalso again
cited andconfirmedthecase ofMartin vs. Mott, Luther vs. Borden,and
Vanderheyden vs. Young (11 Johns (N.Y.), 159).
ChiefJustice Marshall, in thecaseofMcCullough vs. State ofMaryland (4
Wheat, 316), says:
We think thesoundconstructionoftheConstitutionmust allow
the nationallegislaturethatdiscretion withrespect to the means
by which the powers itconfers are carriedintoexecutionwhich
will enable that body to perform thehigh duties assigned to it in
the manner mostbeneficial tothepeople. ... Such being thecase,
the determinationofthesequestions bythepoliticaldepartment
ofthe Government mustalso necessarily beconclusive.
ChiefJustice Taney, inthecase of ex parte Merryman, 17FederalCases, 144
(Fed. CaseNo. 9487), said,in speaking ofthe power ofthecourts:
It is true thatin the casementionedCongress is ofnecessity the
judge ofwhether thepublicsafety does or does not requireit (the
suspensionofthe writof habeas corpus), and their judgmentis
conclusive.
ChiefJustice Taney, inthesame decision, quotes thefollowing languageof
Mr. JusticeStory approvingly:
It would seemas thepoweris given to Congress to suspendthe
writ of habeas corpus in cases ofrebellion or invasion,that the
right to judge whether the exigency hadarisenmustexclusively
belong to that body.
In the case ofMcCall vs. McDowell, 15 Fed. Cases,1235(Fed.CaseNo. 8673),
Judge Deady said:
When the occasion arises — rebellionor invasion— whether the
"public service"requires the suspensionofthe writor notis
confided to thejudgment ofCongress,andtheiraction in the
premises is conclusive upon allcourts andpersons. . . .
The suspension enables the executive,without interferencefrom
the courts or the law, to arrest andimprison persons against
whom no legal crime canbe proved,but who may,nevertheless,

7. be effectivelyengaged informing the rebellion or inviting the
invasion, to theimminentdangerofthepublicsafety.
In the case of Ex parte Field(5 Blatchford, 63) this same question arosein the
State ofVermont,and thesupreme court ofthat State, relying upon the
decision of Mr. JusticeStoryin Luther vs. Borden and that ofChiefJustice
Taney in Martin vs. Mott, decidedthat the Presidentis theexclusive judgeof
the existence of theexigency authorizing himto callforththemilitia and
declaremartiallaw, inpursuance ofthepowerconferredon him by the act
ofCongress of 1795.
Judge Emmons, inthecase ofUnited States vs. 1,500Bales ofCotton(Fed.
Case No. 15958), in discussing this generalquestion, said, quoting from a
decision of Chief JusticeChase:
The belligerentrelation having oncebeenrecognizedby the
politicalpower,all the peopleofeach Stateor districtin
insurrectionmust beregarded as enemies until,by theactionof
the legislature andexecutive, thatrelationis thoroughly and
permanently changed. . . .
The statutedevolveduponthePresident the politicaldutyof
determining whetherarmed forceshouldbe called out toput
down insurrectionin the States.It was for himto decidewhen the
exigency occurred.The courts hadno concernwith it. ... Whether
there was any necessity for theexerciseofthepowerofthe
Presidentto call out themilitia thecourt could notdetermine. His
decision was final... Ifthejudicialpower werethus extended,the
guaranty in theConstitution ofa republicanform ofgovernment
was a guarantyofanarchy,not of order.Equally incongruous
results wouldfollow ifthecourts instead oftheGovernment,
were to decide whenhostilities areended and whentradeand
intercourse should beresumed.
Not only has it been decided innumerous cases that the power to call out
the militia and tosuspend the writofhabeas corpus is entirely withinthe
discretion of thelegislative and executivebranches ofthe Government, but,
when the executiveand legislativedepartments havedecided thatthe
conditions exist justifying theseacts, thecourt willpresumethatsuch
conditions continueto existuntilthesame authority (legislative, etc.) has
decidedthat such conditions nolongerexist.
Judge Dillon,in the caseof Philips vs. Hatch (Fed. Case No.11094, said:
From the natureofthequestion,from the fair implicationofthe
act of July 13, 1862(an actauthorizing thesuspensionofthewrit
ofhabeas corpus), from theconfusion thatwouldensuefromany
other rule, itis theopinion ofthecourtthat the rebellion must be
considered as in existenceuntilthePresident declared it at an end
in a proclamation.
Judge Emmons, intheabovecase, discussing this samequestion, said:
These unquestioned doctrines havenot been extemporizedfor
the modernand exceptional exigencies ofthelaterebellion. They
belong to thejurisprudenceofallcountries and wereadopted as
part of that of ourown fromits earliesthistory.Our most
conservativejudges,Marshall,Story, and Taney, havebeen
foremost inannouncing them. No citizen wouldchallengethe
justness and necessity ofthis rule. Judges have their peculiar
duties which, if faithfully andlearned studied,have littletendency
to make them familiarwith currentandrapidlychanging
conditions upon whichdepend the important political question of
whether itis safeto relax,on theinstant, military ruleand restore
intercourse andtrade.
The following cases arealso cited:
Brown vs. Hiatt, Fed. CaseNo. 2011.
United States vs. 100Barrels ofCement,Fed. CaseNo.15945.
Gelstonvs. Hoyt,3 Wheat., 246.
The Divina Pastora,4 Wheat., 52.
The Santissima Trinidad,7 Wheat., 283.
Rose vs. Himely,4 Cranch,241.
Garcia vs. Lee, 12Peters, 511.
Stewart vs. Kahn, 11Wallace, 493.
Mrs. Alexander's Cotton,2 Wallace, 404.
For a general discussion,seeSixth American LawRegister, 766; 4 Chicago
Legal News,245.
No Government,pastor present,has morecarefully and watchfully guarded
and protected,by law,theindividual rights oflife and property ofits citizens
than the Government of theUnited States and ofthevarious States ofthe
Union. Each of thethreedepartments ofthe Government has had separate
and distinct functions toperformin this greatlabor. Thehistory oftheUnited
States,covering morethan a century and a quarter, discloses the factthat
each department has performedits partwell.No onedepartment ofthe
Government canor ever has claimed, within its discretionary power, a
greater zealthan theothers inits desireto promotethewelfareofthe
individualcitizen.They areall joinedtogetherin their respectivespheres,
harmoniouslyworking tomaintaingoodgovernment, peace, andorder,to
the end that the rights ofeach citizenbe equallyprotected.No one
department can claimthatit has a monopoly ofthese benign purposes ofthe
Government. Eachdepartment has anexclusivefieldwithin whichit can
perform its part,withincertain discretionary limits. No other departmentcan
claim a rightto enter thesediscretionarylimits andassumeto act there.No
presumption ofanabuseof these discretionary powers by onedepartment
will be considered orentertained by another. Such conduct on the part of
one department, instead oftending toconserve the Government and the
right ofthe people, would directly tendto destroy theconfidenceofthe
people intheGovernment andto underminethevery foundations ofthe
Government itself.
For all ofthe foregoing reasons, the applicationfor thewrit of habeas
corpus shouldbe denied,andit is so ordered.
Arellano, C.J.,Mapa, and Carson, JJ.,concur.
EN BANC
G.R. No. L-4221 August 30, 1952
MARCELOD. MONTENEGRO, petitioner-appellant,
vs.
GEN. MARIANOCASTAÑEDA, and COLONEL EULOGIOBALAO, respondents-
appellees.
Felixberto M. SerranoandHonorioIlagan forappellant.
Office ofthe SolicitorGeneral Pompeyo Diaz and Solicitor Felix V. Makasiar
for appellees.
BENGZON, J.:
The purposeofthis appealfrom the CourtofFirst InstanceofQuezonCity is
to test thevalidity ofProclamationNo. 210 suspending theprivilege ofthe
writ of habeas corpus.
A few months agothesameproclamationcameup for discussion in
connectionwiththerequest for bail ofsomeprisoners chargedwith
rebellion.1 Thedividedopinion ofthis Court did notsquarelypass on the
validity oftheproclamation; but, assuming it was obligatory,bothsides
proceeds todetermineits effect upontherightof which prisoners to go on
bail.
This decision willnowconsider the points debated regarding theaforesaid
residential order.
The facts are fewand simple: About fiveo'clockin themorning ofOctober
18, 1950,Maximino Montenegro was arrestedwith others at theSamanillo
Bldg. Manila, byagents ofthe Military Intelligence ServiceoftheArmed
Forces ofthePhilippines, for complicity witha communistic organizationin
the commission ofacts ofrebellion, insurrectionor sedition. So faras the
record discloses, heis still under arrestin the custody by respondents.On
October 22,1950, The Presidentissued ProclamationNo. 210suspending the
privilegeofthewritof habeas corpus. On October 21, 1950,Maximino's
father, thepetitioner,submittedthis application for a writof habeas
corpus seeking the release ofhis son.
Opposing thewrit, respondents admittedhaving thebodyofMaximino,but
questioned judicialauthority togo furtherin the matter, invoking theabove-
mentioned proclamation.
Petitioner replied thatsuch proclamation was void, and that, anyway, itdid
not apply tohis son, who had been arrested before its promulgation.
Heeding thesuspension order, the court offirst instance denied therelease
prayed for. Hence this appeal,foundedmainly onthepetitioner's
propositions:.
(a) The proclamationis unconstitutional"becauseit partakes ofbillof
attainder, oran ex post facto law; and unlawfully includes seditionwhich
under the Constitution is not a groundfor suspension";
(b) Supposing the proclamationis valid, no primafacie.
(c) "There is no state ofinvasion, insurrection orrebellion, or imminent
danger thereof,"theonly situations permitting discontinuanceofthewrit
ofhabeas corpus; showing was madethat thepetitioner's sonwas included
within theterms thereof.
Proclamation No.210reads partly as follows:
WHEREAS, lawless elements ofthe country havecommitted overt
acts ofsedition, insurrectionand rebellion for thepurposeof
overthrowing the duly constituted authorities and inpursuance
thereof, havecreated a state oflawlessness and disorder affecting
public safety and the security ofthestate;

8. WHEREAS, theseacts ofsedition,insurrection, and rebellion
consisting of armedraids,sorties,andambushes andthewanton
acts of murder,rape, spoilage, looting,arson, planneddestruction
of public andprivatebuildings,and attacks against policeand
constabulary detachments, as well as against civilianlives and
properties as reported by theCommanding GeneraloftheArmed
Forces, haveseriously endangered andstill continue to endanger
the publicsafety;
WHEREAS, theseacts ofsedition,insurrectionand rebellion have
been perpetrated by various groups well organized for concerted
actions and wellarmed withmachineguns,rifles, pistols and
other automaticweapons,by reasonwhereofthereis actual
danger of rebellion which may extendthroughoutthecountry;
Whereas,100leading members oftheselawless elements have
been apprehended andthepresently under detentions,and
strong andconvincing evidencehas been found in their
possession to show thatthey are engaged intherebellious,
seditious and otherwise subversiveacts as aboveset forth; and
Whereas,publicsafety requires thatimmediate andeffective
action betaken to insurethepeaceand securityofthe population
and to maintain the authority ofthegovernment;
NOW, THEREFORE, I, ELPIDIO QUIRINO, President ofthe
Philippines, by virtue ofthepowers vested uponme byarticleVII,
section10, paragraph(2) ofthe Constitution,do hereby suspend
the privilegeof thewrit of habeas corpus for thepersons
presently detained,as wellas allothers who may behereafter
similarly detainedfor thecrimes ofsedition,insurrectionor
rebellion,and or ontheoccasionthereof, or incident thereto, or
in connection therewith.
A. It is first argued thattheproclamationis invalidbecauseit "partakes"ofa
bill ofattainder oran ex post factolaw,and violates theconstitutional
percept that no bill of attainder orex post factolaw shallbepassed. The
argumentis devoidof merit.The prohibition applies only tostatutes.U.S. vs.
Gen. El., 80 Fed. Supp. 989; De Pass vs. Bidwell, 24Fed., 615.2 Abillof
attainder is a legislativeact which inflicts punishmentwithout judicialtrial.
(16 C.J.S. p. 902; U.S.vs.Lovett(1946) 328U.S. 303).Anyway, if, as we find,
the stay of the writ was orderedin accordance withthepowers expressly
vested inthePresident by the Constitution,such order mustbe deemed an
exception tothegeneralprohibition againstex post factolaws and bills of
attainder — supposing thereis a conflictbetween theprohibition andthe
suspension.
On the other handthereis no doubtit was erroneous to include those
accused of seditionamong the persons as to whomsuspension ofthewrit is
decreed. Under theConstitutiontheonly grounds for suspension ofthe
privilegeof thewritare "invasion, insurrection,rebellionor imminentdanger
thereof."Obviously, however,theinclusion ofseditiondoes not invalidate
the entireproclamation; and itis immaterial inthis case, inasmuch as the
petitioner's descendant is confined injailnot only for sedition, but for the
graver offense of rebellion and insurrection. Withoutdoing violence tothe
presidentialdirective,butin obedience tothesupreme lawofthe land,the
word "sedition"in Proclamation No. 210should bedeemeda mistakeor
surplusage that does nottaintthedecreeas a whole.
B. In his second proposition appellant insists there is nostate ofinvasion,
insurrection, rebellion or imminentdanger thereof."Thereare"headmits
"intermittent sorties and lightning attacks by organizedbands indifferent
places"; but, heargues, "such sorties areoccasional,localized andtransitory.
And the proclamation speaks no more than ofovert ofinsurrection and
rebellion,notof cases of invasion, insurrectionor rebellion or imminent
danger thereof."On this subjectit is noted thatthePresident concluded
from the facts recited intheproclamation,and theotherconnected
therewith,that "thereis actualdangerrebellionwhich mayextend
throughout thecountry."Suchofficial declarationimplying muchmore than
imminentdanger of rebellion amply justifies the suspensionofthe writ.
To the petitioner's unpracticed eye the repeated encounters between
dissident elements andmilitary troops may seemsporadic, isolated, or
casual. But theofficers charged with the Nation's security, analyzed the
extent and pattern of suchviolent clashes and arrivedattheconclusion that
they are warpand woof of a generalschemeto overthrow his government vi
et armis, by force andarms.
And we agree withtheSolicitor General that inthelight oftheviews ofthe
United States SupremeCourtthru, Marshall, Taneyand Story quoted with
approvalin Barcelon vs. Baker (5 Phil., 87, pp.98and100) theauthorityto
decide whenever theexigency has arisen requiring thesuspensionbelongsto
the Presidentand "his decision is finaland conclusive"upon the courts and
upon all other persons.
Indeed as JusticeJohnston said inthatdecision,whereas theExecutive
branch oftheGovernment is enabled thru its civil andmilitary branches to
obtain information about peaceand orderfrom every quarterand corner of
the nation, thejudicial department, withits very limited machinery can not
be in better positionto ascertain or evaluatetheconditions prevailing inthe
Archipelago.
But even supposing the President's appraisal ofthe situationis merely prima
facie, we seethatpetitioner inthis litigationhas failedto overcome the
presumption ofcorrectness which thejudiciary accords toacts ofthe
ExecutiveandLegislative Departments ofour Government.
C. The petitioner's last contention is that therespondents failedto establish
that this son is included withintheterms oftheproclamation.
On this topic, respondents'return officially informed thecourtthat
Maximino hadbeen arrestedandwas under custody for complicity in the
commission ofacts ofrebellion, insurrectionandseditionagainst the
Republicofthe Philippines. Nothaving traversedthatallegation in time,
petitionermust bedeemed to have concededit.
. . . In the absence ofa denial, or appropriate pleading avoiding
their effect, avermentoffacts inthereturn willbe taken as true
and conclusive,regardless ofthe allegations contained inthe
petition; and the only question for determination is whether or
not the facts stated in thereturn, as a matter oflaw, authorizes
the restraintunderinvestigation.(39 C.J.S., 664-655.)
D. An interesting issue is posed byamicicuriae. TheBill ofRights prohibits
suspensionofthe privilegeofthewritof habeas corpus exceptwhen the
public safety requires it,in cases of(1) invasion(2) insurrectionor (3)
rebellion.
Article VII Section10 authorizes thePresident to suspendtheprivilege,when
public safety requires it,in cases of(1) invasion(2) insurrectionor (3)
rebellion or(4) imminentdanger thereof.
"Imminent danger,"is no causefor suspension under theBill ofRights. Itis
under ArticleVII. To complicatematters,during the debates ofthe
ConstitutionalConventionon theBill ofRights, particularly thesuspension of
the writ, theConventionvoted downan amendmentadding a fourthcauseof
suspension: imminent dangerofinvasion, insurrectionofrebellion.
Professor Aruego a member oftheConvention, describes theincident as
follows:
During the debates on the firstdraft,Delegate Francisco proposed
as an amendment inserting, as a fourth causefor thesuspension
ofthe writ of habeas corpus imminent danger ofthethreecauses
includedherein.When submitted toa votefor thefirst time, the
amendmentwas carried.
After this motion for a reconsiderationofthe amendmentwas
approved, DelegateOrense spoke againsttheamendment
alleging that itwouldbe dangerous to makeimminentdanger a
ground for the suspension ofthewrit of habeas corpus. Inpart,he
said:
"Gentlemen,this phrase is too ambigous, and inthehands ofa
Presidentwho believes himselfmoreor less a dictator,it is
extremely dangerous, it wouldbe a swordwith whichhe would
behead us.".
In defenseoftheamendment, Delegate Francisco pointed out
that it was intendedto makethis part ofthe billofrights conform
to that part ofthedraft giving thePresidentthepowerto suspend
the writ of habeas corpus also in thecaseofanimminent danger
ofinvasionor rebellion. When askedby DelegateRafols ifthe
phrase,imminent danger, might not bestruck outfrom this
corresponding provisions under theexecutivepower instead,
Delegate Francisco answered:
"Outright, it is possibletoeliminate the phrase,imminent danger
thereof, in thepageI havementioned. ButI say, going tothe
essenceofreferring exclusively to the necessity ofincluding the
words, ofimminentdanger ofoneor theother, I wishto say the
following: thatit shouldnotbe necessary thatthereexists a
rebellion,insurrection or invasion inorder that habeas
corpus may besuspended. It shouldbe sufficientthatthereexists
not a danger butanimminent danger,andtheword, imminent,
should bemaintained. Whenthereexists an imminent danger, the
State requires for its protectionandfor thatofallthecitizens the
suspensionof habeas corpus."

9. When put to vote for the second time, the amendmentwas
defeated with 72votes againstand56votes in favor ofthesame.
(I Aruego's Framing ofthePhilippine Constitution,pp. 180-181)
Nevertheless whenthePresident's specific powers under ArticleVII, were
taken up therewas no objectionto his authority to suspendin caseof
"imminentdanger". (At least wearenot informedofanydebatethereon.)
Now then, what is the effectoftheseeming discrepancy?
Is the prohibition of suspension in thebillofrights tobeinterpreted as
limiting Legislativepowers only — not executive measures undersection VII?
Has articleVII (sec. 10) protantomodifiedthebill ofrights inthesame
manner thata subsequent sectionofa statuemodifies a previous one?
The differencebetween the two constitutionalprovisions wouldseem tobe:
whereas the billof rights impliedly denies suspension incase ofimminent
dangers of invasionetc.,articleVII sec. 10 expressly authorizes thePresident
to suspend whenthereis imminent dangerofinvasion etc.
The following statements ina footnote in Cooley's Constitutionallimitations
(8th Ed.) p. 129, appear tobe persuasive:
It is a general rulein the construction ofwritings, that, a general
intent appearing, itshallcontrol theparticular intent;but this rule
must sometimes giveway, andeffect mustbe givento a particular
intent plainly expressedin one partofa constitution,though
apparently opposed to a generalintent deducedfrom otherparts.
Warren V. Shuman, 5Tex. 441. In Quick V. Whitewater Township,
7 Ind. 570, itwas saidthat iftwo provisions ofa written
constitutions areirreconcilably repugnant, thatwhich is lastin
order of time andin localposition is to bepreferred. In Gulf, C. &
S. F. Ry. Co. v. Rambolt, 67tex. 654, 4 S.W. 356,this rulewas
recognizedas a lastresort, but ifthe lastprovision is more
comprehensive andspecific, itwas held thatit should begiven
effect on thatground.
And in Hoag vs. WashingtonOregonCorp.(1915) 147Pac. Rep.,756 at p. 763
it was said:
It is a familiarrule ofconstructionthat, wheretwoprovisions ofa
written Constitution arerepugnant to each other,that which is
last in order of time andin local position is to bepreferred. Quick
v. White Water Township, 7 Ind., 570; G., C.& S.F. Ry.Co.v.
Rambolt,67 Tex. 654, 4 S.W. 356.So, even assuming the two
clauses discuss arerepugnant,thelattermust prevail.
Whereforein the lightof this precedents, theconstitutional authorityofthe
Presidentto suspendin caseofimminentdanger ofinvasion, insurrection or
rebellion under articleVII may notcorrectly beplacedin doubt.
E. The petitioner insisted inthecourt below that thesuspension shouldnot
apply to his son,becausethelatterhadbeenarrestedandhad filedthe
petitionbeforetheExecutiveproclamation.On this phase ofthecontroversy,
it is our opinion thattheorderofsuspensionaffects thepowerofthecourt's
and operates immediately onall petitions therein pending atthetimeofits
promulgation.
A proclamation ofthe Presidentsuspending thewrit ofhabeas
corpus was heldvalidand efficientin lawto suspendall
proceedings pending uponhabeas corpus, which was issued and
served priorto thedateoftheproclamation.Matter ofDunn, D.C.
N.Y. 1863, 25How.Prac.467, 8 Fed.Cas. 4,171.
F. Premises considered,thedecisionofthecourt a quo refusing to release
the prisoner is affirmed,without costs.
EN BANC
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO
LANSANG RODOLFODEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDOM. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-33965 December 11, 1971
ROGELIOV. ARIENDA, petitioner,
vs.
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL.
CONSTABULARY, respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID,petitioner,
vs.
GEN. EDUARDOGARCIA, in hiscapacity asChief, PhilippineConstabulary,
COL. N. C. CAMELLO, in hiscapacity asChiefofStaff, Philippine
Constabulary and HON. JUAN PONCEENRILEin hiscapacity asSecretary,
Department ofNational defense,respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E.
PRUDENTE FELICIDAD G. PRUDENTE, petitioners,
vs.
GENERAL MANUEL YAN, GEN. EDU GARCIA,respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF
GERARDOTOMAS, ALSOKNOWN AS "GERRY TOMAS" AND FOR RETURN OF
DOCUMENTS ILLEGALLY SEIZED. DOMINGOE. DELARA, in hiscapacity as
Chairman, Committeeon Legal Assistance, PhilippineBar
Association,petitioner,
vs.
BRIG. GENERAL EDUARDOM. GARCIA, CHIEF, PHILIPPINE
CONSTABULARY, respondent.
G.R. No. L-34013 December 11, 1971
REYNALDORIMANDO, petitioner,
vs.
BRIG. GEN. EDUARDOM. GARCIA, Chiefofthe Philippine
Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF
SGT. FILOMENOM. DECASTROAND HIS WIFE, MRS. BARCELISA C. DE
CASTRO. CARLOS C. RABAGO, in hiscapacity asPresidentofthe Conference
DelegatesAssociation ofthe Philippines(CONDA),petitioner,
vs.
BRIG. GEN. EDUARDOM. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN
ORETA, JR. ANTOLIN ORETA, JR., petitioner,
vs.
GEN. EDUARDOGARCIA and COL. PROSPEROOLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by hisfather, GEORGEOLIVAR, petitioner,
vs.
GEN. EDUARDOGARCIA, in hiscapacity asChief, PhilippineConstabulary, et
al., respondents.
Ignacio P. Lacsina forpetitioners TeodosioLansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire GarciaII for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, WigbertoE. Tañada,
Fortunatode Leon, R. G.Suntay andJuan T. Davidfor petitioner FelicidadG.
Prudente.
Ruben L. Roxas for petitionerReynaldo Rimando.
Nuñez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.
E. Voltaire GarciaII and M. P. Vivo for petitionerGary Olivar,etc.,et al.
Jose W. DioknoandJuanitoR. Remulla forpetitioner Antolin Oreta, Jr.
DomingoE. de Larafor and inhis own behalf.
Office ofthe SolicitorGeneral Felix Q. AntonioandAssistant SolicitorGeneral
Bernardo P. Pardo for respondents.
CONCEPCION, C.J.:
In the evening ofAugust 21, 1971,atabout9 p.m., while theLiberalParty of
the Philippines was holding a publicmeeting at Plaza Miranda,Manila,for
the presentation ofits candidates inthegeneralelections scheduledfor
November 8,1971, two(2) hand grenades were thrown,oneafter the other,
at the platform wheresaid candidates and other persons were. As a
consequence, eight(8) persons were killed and many moreinjured, including
practically all oftheaforementioned candidates, someofwhomsustained
extensive, as well as serious, injuries whichcouldhave been fatal had it not
been for the timely medical assistancegiven to them.
On August 23, soon after noontime,thePresident ofthe Philippines
announced the issuanceofProclamationNo. 889,dated August 21,1971,
reading as follows:
WHEREAS, on the basis ofcarefully evaluated
information,it is definitely established that lawless
elements in the country,whicharemovedby common
or similar ideological conviction, design and goaland
enjoying theactivemoraland materialsupport ofa
foreign powerand being guidedanddirected by a well
trained, determinedandruthless groupofmenand

10. taking advantageofour constitutionalliberties to
promote and attain their ends,have entered intoa
conspiracy and havein factjoined and banded their
forces together for the avowedpurposeofactually
staging, undertaking andwaging an armedinsurrection
and rebellionin order to forcibly seizepoliticalpower
in this country, overthrow the duly constituted
government, and supplant our existing politicalsocial,
economicand legal order with an entirely newone
whose form ofgovernment,whosesystemoflaws,
whose conceptionofGod and religion,whosenotion
of individualrights andfamily relations,and whose
political, social andeconomic precepts are based on
the Marxist-Leninist-Maoist teachings andbeliefs;
WHEREAS, theselawless elements, acting in concert
through front organizations that are seemingly
innocentand harmless,havecontinuously and
systematically strengthened and broadened their
memberships throughsustainedand carefulrecruiting
and enlistmentofnew adherents from among our
peasantry, laborers, professionals, intellectuals,
students,and mass media personnel,and throughsuch
sustained andcareful recruitment and enlistment have
succeeded ininfiltrating almost everysegmentofour
societyin their ceaseless determination toerodeand
weaken the political, social,economic and moral
foundations ofour existing government and to
influencemany peasant,labor, professional,
intellectual, student and mass media organizations to
commit acts ofviolence and depredations againstour
duly constituted authorities, againstthemembers of
our law enforcementagencies, and worst ofall,against
the peacefulmembers ofoursociety;
WHEREAS, theselawless elements havecreated a state
of lawlessness and disorderaffecting publicsafety and
the security oftheState, the latestmanifestationof
which has beenthedastardly attack on the Liberal
Party rally inManila on August 21, 1971,which has
resulted inthedeath andserious injury ofscores of
persons;
WHEREAS, public safetyrequires that immediateand
effective action betakenin order to maintain peace
and order,securethesafety ofthepeople and
preservetheauthorityofthe State;
NOW, THEREFORE, I, FERDINAND E. MARCOS,
PresidentofthePhilippines, by virtue ofthe powers
vested upon meby ArticleVII, Section10, Paragraph
(2) of the Constitution, dohereby suspend the privilege
of the writ of habeas corpus, for thepersons presently
detained,as wellas others who maybe hereafter
similarly detainedfor thecrimes ofinsurrectionor
rebellion,and allother crimes andoffenses committed
by them in furtheranceor ontheoccasionthereof, or
incidentthereto, or inconnection therewith.
Presently, petitions for writ of habeas corpus werefiled,in the above-
entitled cases,by thefollowing persons, who, having been arrested withouta
warranttherefor and thendetained, upon the authority ofsaid
proclamation, assailits validity,as wellas thatoftheir detention,namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO andBAYANI ALCALA, the
petitioners in Case No. L-33964— filed on August24, 1971— who, on
August 22, 1971, between 8a.m. and 6p.m., were"invited"by agents ofthe
PhilippineConstabulary — which is under thecommand ofrespondent Brig.
Gen. EduardoM. Garcia — togo and did go to the headquarters ofthe
PhilippineConstabulary,atCamp Crame, Quezon City, for interrogation,and
thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner inCaseNo. L-33965 — filed, also, on
August 24, 1971— whowas picked upin his residence,atNo. 55Road, 3,
Urduja Village,QuezonCity, by members ofthe Metrocom and then
detained;
3. Soon after the filing of thepetition in CaseNo. L-33965— or on August28,
1971 — the samewas amended to include VICENTEILAO andJUAN
CARANDANG, as petitioners therein, although, apartfrom stating that these
additional petitioners aretemporarily residing with the originalpetitioner,
Rogelio V. Arienda,theamended petition allegednothing whatsoeveras
regards the circumstances under whichsaid VicenteIlao andJuanCarandang
are said to beillegally deprived oftheir liberty;
4. LUZVIMINDO DAVID, petitioner inCaseNo.L-33973 — filedon August25,
1971 — who was similarly arrested inhis residence, atNo. 131-B Kamias
Road, Quezon City,anddetainedby theConstabulary;
5. Felicidad G. Prudente, whofiled the petitionin Case No. L-33982— on
August 27, 1971— upon theground that her father, Dr. NEMESIO E.
PRUDENTE, had, on August 22,1971, atabout8 p.m., been apprehended by
Constabulary agents in his house, at St. Ignatius Village, Quezon City, and
then detained attheCampCramestockade, Quezon City;
6. ANGELO DELOS REYES, who was allowed — onAugust 30, 1971— to
intervene as oneofthe petitioners in Cases Nos. L-33964,L-33965 andL-
33973, hehaving beenarrestedby members oftheConstabularyon August
22, 1971,between 6:30and7:30 p.m.,in his residence,at 86 Don Manuel
Street, Sta. Mesa Heights, Quezon City,and broughtto CampCrame, Quezon
City, wherehe is detained andrestrainedofliberty;
7. VICTOR FELIPE, who was similarly allowed tointervene as oneofthe
petitioners in said three (3) cases,upon theground that, onAugust 23, 1971,
at about 8a.m., hewas, likewise, apprehendedatSta. Rosa, Laguna, by
members ofthePhilippineConstabularyand brought, first tothe
Constabulary headquarters atCanlubang, Laguna, and,then, toCamp Crame,
Quezon City, whereheis detained andrestrainedofliberty;
8. TERESITO SISON, who was, also, allowed tointerveneas oneofthe
petitioners in the samethree(3) cases, hehaving been arrestedin his
residence, at 318Lakandula St., Angeles City, on August22,1971, between 6
and 7 p.m., andtakento thePCoffices at Sto. Domingo,Angeles City,then to
Camp Olivas, SanFernando, Pampanga,andeventually toCamp Crame,
Quezon City, whereheis restrained anddeprived ofliberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second yearcollege
students ofSt. Louis University, BaguioCity, onwhosebehalf, DomingoE. de
Lara — in his capacity as Chairman,Committeeon Legal Assistance,
PhilippineBar Association — filed onSeptember3, 1971, the petitionin Case
No. L-34004, upon thegroundthat saidGerardo Tomas had,on August23,
1971, atabout6 a.m.,been arrestedby Constabulary agents, while onhis
way to school in theCity ofBaguio, thenbrought totheConstabulary
premises thereinatCamp Holmes, and, thereafter,taken, on August24,
1971, to CampOlivas,Pampanga, and thence, onAugust 25, 1971, tothe
Constabulary headquarters atCampCrame, Quezon City,wherehe is
detained;
10. REYNALDO RIMANDO, petitionerin CaseNo. L-34013— filed on
September 7,1971— a 19-yearold studentofthe U.P. Collegein Baguio city
— who, whileallegedlyon his way home, at Lukban Road, Baguio, onAugust
23, 1971,atabout1 a.m., was joined by three(3) men whobroughthimto
the Burnham Park, thence, to CampOlivas at San Fernando,Pampanga, and,
thereafter, to CampCrame, Quezon City, whereheis detained;
11. Sgt. FILOMENO M. DECASTRO and his wife, Mrs. BARCELISAC. DE
CASTRO, on whose behalf Carlos C. Rabago— as President oftheConference
Delegates Association ofthePhilippines (CONDA) — filedthepetition inCase
No. L-34039— on September14,1971 — against Gen. Eduardo M. Garcia,
alleging that,on August 27,1971,atabout3 p.m., Mrs. DeCastrowas
arrested,whileatLiamzon Subdivision, Rosario, Pasig, Rizal, by agents ofthe
Constabulary, and takento thePC headquarters atCamp Crame,where,
later, thatsame afternoon, her husband was brought, also, byPC agents and
both are detained;
12. ANTOLIN ORETA, JR., who filed thepetition in CaseNo. L-34265— on
October 26,1971 — against said Gen.Garcia, as Chiefofthe Constabulary,
and Col. Prospero Olivas, ChiefoftheCentral Intelligence Service(CIS),
PhilippineConstabulary,alleging that, upon invitation fromsaid CIS,he went,
on October 20, 1971, toCamp Aguinaldo,QuezonCity, to see Gen. Manuel
Yan, ChiefofStaffoftheArmed Forces ofthePhilippines,who referred
petitionerto Col. Laroya oftheCIS; that thelatter, inturn, referredhimto
CIS InvestigatorAtty. BerlinCastilloand another CIS against, whose name is
unknown to thepetitioner; andthat,after being interrogated by thetwo (2),
petitionerwas detained illegally; and
13. GARY OLIVAR, petitioner inCaseNo. L-34339 — filedon November10,
1971 — who was apprehended, by agents oftheConstabulary,in the evening
ofNovember 8, 1941,in Quezon City,and then detained at Camp Crame,in
the sameCity.
Upon the filing oftheaforementionedcases, the respondents wereforthwith
requiredto answer thepetitions therein,whichthey did. The returnand
answer in L-33964— which was, mutatis mutandis, reproduced substantially
or by reference intheothercases, except L-34265— alleges,inter alia, that

11. the petitioners had beenapprehendedand detained "on reasonablebelief"
that they had"participated inthecrimeofinsurrection or rebellion;"that
"their continueddetentionis justified due tothesuspension oftheprivilege
ofthe writ of habeas corpus pursuant to Proclamation No.889ofthe
Presidentof thePhilippines;"that thereis "a stateofinsurrection or
rebellion"inthis country, and that "public safety andthesecurity oftheState
requiredthesuspension of theprivilege ofthewrit of habeas corpus,"as
"declared by the Presidentofthe Philippines in Proclamation No. 889; thatin
making saiddeclaration,the"Presidentofthe Philippines acted onrelevant
facts gatheredthruthecoordinatedefforts ofthevarious intelligenceagents
ofour government but (of) which theChiefExecutivecould not at the
moment givea full account and disclosure withoutrisking revelationofhighly
classifiedstate secrets vital toits safelyandsecurity"; thatthedetermination
thus madeby the Presidentis "finaland conclusiveupon thecourtandupon
all otherpersons"and "partake(s) ofthe natureofpoliticalquestion(s) which
cannot bethesubject of judicialinquiry,"pursuant toBarcelon v. Baker,5
Phil. 87, andMontenegro v. Castañeda,91 Phil. 882; that petitioners "are
under detention pending investigation andevaluation ofculpabilities on the
reasonablebelief"thatthey "have committed,andare stillcommitting,
individuallyor in conspiracy with others, engagedin armed struggle,
insurgency and other subversiveactivities for theoverthrow ofthe
Government; that petitioners cannotraise, in theseproceedings for habeas
corpus, "the question of theirguilt or innocence"; that the"Chiefof
Constabulary had petitioners taken intocustody onthebasis oftheexistence
ofevidencesufficient toafforda reasonableground to believethat
petitioners come within thecoverageofpersons to whom the privilegeof
the writ of habeas corpus has been suspended"; that the "continuing
detention of thepetitioners as an urgent bona fideprecautionaryand
preventive measure demanded by the necessities ofpublic safety,public
welfare and publicinterest"; that the PresidentofthePhilippines has
"undertaken concreteand abundantsteps to insurethat theconstitutional
rights andprivileges of thepetitioners as wellas oftheother persons in
current confinement pursuantto Proclamation889 remain unimpairedand
unhampered"; and that"opportunities or occasions for abuses by peace
officers in the implementation oftheproclamationhave been greatly
minimized, if notcompletely curtailed,by various safeguards containedin
directives issued by proper authority."
These safeguards are setforthin:
1. Aletter of thePresident to theSecretary ofNationalDefense, dated
August 21, 1971, directing, inter alia, inconnection with the arrest or
detention of suspects pursuant to Proclamation No.889, that, except when
caught in flagrante delicto,no arrest shallbe made without warrant
authorized inwritingby theSecretaryofNationalDefense; thatsuch
authority shallnot begrantedunless, "on thebasis ofrecords andother
evidences,"itappears satisfactorily, in accordancewith Rule113, section
6(b), ofthe Rules of Court, that thepersonto bearrestedis probably guilty of
the acts mentionedin the proclamation; that, ifsuchperson willbecharged
with a crime subjectto anafflictivepenalty under theAnti-SubversionAct,
the authorizationfor his arrest shallnotbe issuedunless supportedby signed
intelligencereports citing atleastonereliablewitness to thesame overt act;
that no unnecessary or unreasonableforceshallbe used ineffecting arrests;
and that arrested persons shallnot besubject togreaterrestraintthanis
necessary for their detention;
2. Communications of the Chiefofthe Constabulary, dated August23, 27,
and 30, 1971, to allunits ofhis command,stating that theprivilegeofthe
writ is suspended for noother persons than thosespecifiedin the
proclamation; that thesamedoes not involvemateriallaw;that
precautionary measures should betaken toforestall violencethatmay be
precipitated by improper behaviorofmilitary personnel; thatauthority to
cause arrest under theproclamationwill beexercised only by the Metrocom,
CMA, CIS, and "officers occupying positionin theprovinces down to
provincialcommanders"; that thereshallbeno indiscriminateor mass
arrests; that arrested persons shall not beharmed andshallbe accordedfair
and humane treatment; and thatmembers ofthedetainee's immediate
family shall beallowed tovisithimtwicea week;
3. Amemorandumof theDepartment ofNationalDefense, dated September
2, 1971, directing theChief oftheConstabulary toestablishappropriate
Complaints and Action Bodies/Groups to prevent and/or check any abuses in
connectionwiththesuspension oftheprivilege ofthe writ; and
4. ExecutiveOrder No.333, datedAugust 26, 1971,creating a Presidential
Administrative AssistanceCommitteeto hear complaints regarding abuses
committed inconnection with the implementation ofProclamationNo. 889.
Respondents in L-33965furtheralleged thatthereinpetitioners VicenteIlao
and JuanCarandang hadbeenreleased fromcustody onAugust 31, 1971,
"after it hadbeen found that theevidenceagainst themwas insufficient."
In L-34265,the"AnswerandReturn"filed by respondents thereintraversed
some allegations offactand conclusions oflaw madein thepetitiontherein
and averredthat Antolin Oreta,Jr.,thepetitioner therein,hadbeenandis
detained "on thebasis ofa reasonable groundto believethat hehas
committed overtacts infurtheranceofrebellionor insurrection againstthe
government"and, accordingly,"comes within the class ofpersons as to
whom the privilegeofthewrit of habeas corpus has beensuspended by
Proclamation No.889, as amended,"the validityofwhich is notcontested by
him.
On August 30, 1971, the PresidentissuedProclamationNo. 889-A, amending
Proclamation No.889, so as toreadas follows:
WHEREAS, on the basis ofcarefully evaluated
information,it is definitely established that lawless
elements in the country,whicharemovedby common
or similar ideological conviction, design and goaland
enjoying theactivemoraland materialsupport ofa
foreign powerand being guidedanddirected by a well-
trained, determinedandruthless groupofmenand
taking advantageofour constitutionalliberties to
promote and attain their ends,have entered intoa
conspiracy and havein factjoined and banded their
forces together for the avowedpurposeof[actually]
staging, undertaking, [and]wagging andare actually
engaged in anarmed insurrection andrebellionin
order to forciblyseizepoliticalpowerin this country,
overthrow the dulyconstitutedgovernment, and
supplant our existing political, social,economicand
legal order withan entirely newonewhoseformof
government, whose system oflaws,whoseconception
ofGod and religion, whosenotionofindividualrights
and familyrelations,andwhosepolitical,socialand
economicprecepts arebasedon the Marxist-Leninist-
Maoist teaching andbeliefs;
WHEREAS, theselawless elements, acting in concert
through front organizations that are seemingly
innocentand harmless,havecontinuously and
systematically strengthened and broadened their
memberships throughsustainedand carefulrecruiting
and enlistmentofnew adherents from among our
peasantly,laborers,professionals, intellectuals,
students,and mass media personnel,and throughsuch
sustained andcareful recruitment and enlistment have
succeeded ininfiltrating almost everysegmentofour
societyin their ceaseless determination toerodeand
weaken the political, social,economic and moral
foundations ofour existing government and influence
many peasant, labor,professional,intellectual, student
and mass media organizations tocommitacts of
violenceand depredations againstour duly constituted
authorities, againstthemembers ofourlaw
enforcementagencies, and worst ofall,against the
peacefulmembers ofoursociety;
WHEREAS, theselawless elements, by their acts of
rebellion and insurrection, havecreated a state of
lawlessness anddisorder affecting publicsafety and
security oftheState, thelatestmanifestationofwhich
has beenthedastardly attack ontheLiberal Party rally
in Manila on August 21,1971, whichhas resulted in
the deathand serious injury ofscores ofpersons;
WHEREAS, public safetyrequires that immediateand
effective action betakenin order to maintain peace
and order,securethesafety ofthepeople and
preservetheauthorityofthe State;
NOW THEREFORE, I, FERDINAND E. MARCOS, President
ofthe Philippines, by virtueofthepowers vested upon
me by ArticleVII, Section10, Paragraph (2) ofthe
Constitution,do hereby suspendtheprivilege ofthe
writ of habeas corpus for thepersons presently
detained,as wellas allothers who may behereafter
similarly detainedfor thecrimes ofinsurrectionor

12. rebellion [,]and [all]other [crimes andoffenses]overt
acts committedby them infurtherance[or on the
occasion]thereof[,]. [or incidentthereto, or in
connectiontherewith.] 1
On September 1,1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982
were jointlyheardand thentheparties therein wereallowed tofile
memoranda, which weresubmittedfrom September 3 to September 9,1971.
Soon thereafter,or on September 18, 1971, Proclamation No.889was
further amendedby ProclamationNo. 889-B,lifting the suspensionofthe
privilegeof thewritof habeas corpus in the following provinces, sub-
provinces and cities of the Philippine, namely:
A. PROVINCES:
1. Batanes 15. Negros Occ.
2. Ilocos Norte16. Negros Or.
3. Ilocos Sur17. Cebu
4. Abra 18. Bohol
5. Abra 19. Capiz
6. Pangasinan 20. Aklan
7. Batangas 21. Antique
8. Catanduanes 22. Iloilo
9. Masbate 23.Leyte
10. Romblon24. Leytedel Sur
11. Marinduque 25. Northern
Samar
12. Or. Mindoro 26. Eastern
Samar
13. Occ. Mindoro 27. Western
Samar
14. Palawan.
B. SUB-PROVINCES:
1. Guimaras 3.Siquior
2. Biliran
C. CITIES:
1. Laog 10. Bacolod
2. Dagupan11. Bago
3. San Carlos 12.Canlaon
4. Batangas 13. La Carlota
5. Lipa 14. Bais
6. Puerto Princesa 15.
Dumaguete
7. San Carlos (Negros 16. Iloilo
Occ.) 17. Roxas
8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu
20. Cebu 24. Tacloban
21. Mandaue25.Ormoc
22. Danao 26. Calbayog
23. Toledo
On September 25, 1971, thePresidentissued ProclamationNo. 889-C,
restoring theprivilege of thewrit inthefollowing provinces and cities:
A. PROVINCES:
1. Surigao del Norte8. Agusan
del Sur
2. Surigao del Sur9. Misamis Or.
3. Davao del Norte10. Misamis
Occ.
4. Davao del Sur 11. Zamboanga
del Norte
5. Davao Oriental12.Basilan
6. Bukidnon 13. Pagadian
7. Agusan delNorte
B. CITIES:
1. Surigao 8.Tangub
2. Davao 9.Dapitan
3. Butuan 10. Dipolog
4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan
6. Ozamiz 13. Pagadian.
7. Oroquieta
On October 4, 1971, the suspensionofthe privilegewas further lifted by
Proclamation No.889-D, in thefollowing places:
A. PROVINCES:
1. Cagayan 5. Camarines
2. Cavite6. Albay
3. MountainProvince7.
Sorsogon
4. Kalinga-Apayao
B. CITIES:
1. CaviteCity3. TreceMartires
2. Tagaytay 4. Legaspi
As a consequences,theprivilege ofthewrit of habeas corpus is still
suspended inthefollowing eighteen (18) provinces, two(2) sub-provinces
and eighteen (18) cities,to wit:
A. PROVINCE:
1. Bataan 10. North Cotabato
2. Benguet 11. Nueva Ecija
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Quezon
5. Ifugao 15. Rizal
6. Isabela 16. South Cotabato
7. Laguna 17.Tarlac
8. LanaodelNorte 18. Zambales
9. LanaodelNorte
B. SUB-PROVINCES:
1. Aurora 2. Quirino
C. CITIES:
1. Angeles 10.Manila
2. Baguio 11. Marawi
3. Cabanatuan 12. Naga
4. Caloocan13. Olongapo
5. Cotabato14.Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18.SanPablo
The first major question thattheCourt had toconsider was whether it would
adhere totheview taken inBarcelon v. Baker, 2 andreiteratedin Montenegro
v. Castañeda,3 pursuant towhich,"theauthority todecide whether the
exigency has arisen requiring suspension(ofthe privilegeofthe writ
ofhabeas corpus) belongs to the Presidentand his 'decisionis finaland
conclusive'uponthecourts and uponall other persons."Indeed, had said
question beendecided intheaffirmativethemainissue in allofthesecases,
except
L-34339,would havebeensettled,and, sincetheotherissues wererelatively
ofminor importance,said cases could havebeen readilydisposedof. Upon
mature deliberation, a majority oftheMembers ofthe Courthad, however,
reached, although tentatively, a consensus to the contrary, anddecidedthat
the Court had authorityto and shouldinquireinto theexistenceofthe
factual bases requiredby theConstitution for the suspension ofthe privilege
ofthe writ; but beforeproceeding to doso,theCourt deemed itnecessaryto
hear the parties on the natureand extent oftheinquiry to beundertaken,
none ofthem having previously expressedtheirviews thereof. Accordingly,
on October 5, 1971,theCourt issued,in L-33964, L-33965,L-33973 andL-
33982, a resolution stating inpart that —
... a majorityofthe Courthaving tentatively arrivedat
a consensus that it may inquirein order to satisfy itself
ofthe existenceofthefactualbases for theissuanceof
PresidentialProclamations Nos.889and 889-A
(suspending theprivilegeofthewrit of habeas
corpus for allpersons detained or tobedetainedfor
the crimes ofrebellion or insurrectionthroughoutthe
Philippines, which area has lately beenreduced to
some eighteenprovinces, twosubprovinces and
eighteencities with the partiallifting ofthe suspension
ofthe privilegeeffected by PresidentialProclamations
Nos. 889-B, 889-C and 889-D) and thus determine the
constitutional sufficiency ofsuch bases inthelight of
the requirements ofArticle III, sec. 1,par. 14, and
Article VII, sec. 10, par.2, ofthePhilippine
Constitution;andconsidering that themembers ofthe
Court are not agreedon theprecise scopeand nature
ofthe inquiryto bemadein the premises, even as all
ofthem are agreedthat the Presidentialfindings are
entitled togreat respect, theCourtRESOLVED that