G.R. No. 2808. September 30, 1905

This was an application by Fred C. Fisher and Charles C. Cohn,
attorneys at law, on behalf of the plaintiff, Felix Barcelon, for a
writ of habeas corpus. The said application alleges, among other things, the following:

“(1) That the said applicant is detained and
restrained of his liberty at the town of Batangas, in the Province of
Batangas,. Philippine Islands.

“(2) That the person who
detained and restrained the said applicant of his liberty is John Doe
Thompson, captain of the Philippines Constabulary, acting under and in
pursuance of the orders of David J. Baker, jr., colonel of the
Philippines Constabulary.

“(3) That the detention and
restraint of the said applicant is wholly without legal authority
therefor. [Here follows a statement of the alleged causes of arrest and
detention of the said applicant by the said defendants.]

“(4)
That the detention and restraint of the said applicant is not under or
by virtue of any process issued by any court or magistrate, nor by
virtue of any judgment or order of any court of record, nor of any
court nor of any magistrate whatsoever.

” (5) That there has
not existed during any of the times in this petition mentioned, and
there does not now exist, in said Province of Batangas, Philippine
Islands, nor in any part thereof, rebellion, insurrection, or invasion,
nor any of them, in any form or degree; and that all the courts of law,
organized and provided by law for the Province of Batangas, have been
at all of the times hereinbefore mentioned in the full and complete
exercise of their functions, without interruption of any nature or kind.

“Wherefore your petitioners pray that a writ of habeas corpus
be issued, requiring the said John Doe Thompson, captain of the
Philippines Constabulary, and David J. Baker, jr., colonel of the
Philippines Constabulary, to bring before this honorable court the
person of the said Felix Barcelon, and that after a full hearing in
accordance with law the said Felix Barcelon be liberated and released
from all restraint and detention, and that respondents be enjoined from
any and all interference with the personal liberty of said Felix
Barcelon, and to pay the costs of this proceeding. (Signed) Fred C.
Fisher. Charles C. Cohn.” (The foregoing facts were duly sworn to by
the said applicants. )

The court, after considering the foregoing petition, made an order
on the 3d day of August, 1905, directing the said David J. Baker, jr.,
and the said John Doe Thompson to appear before this court on the 4th
day of August, 1905, at 9 o’clock a.m., to show cause why the writ of habeas corpus should not be granted in accordance with the prayer of said petition.

At 9 o’clock a.m. on the 4th day of August the respondents, by the
Attorney-General of the Philippine Islands, through George R. Harvey,
representing the latter, filed their answer to the foregoing petition.
By reason of the fact that the said answer failed to disclose whether
or not the said Felix Barcelon was actually detained and deprived of
his liberty by the said respondents, the court directed that said
answer be amended, stating without equivocation whether or not Felix
Barcelon was actually detained by the said respondents, which amended
answer, among other things, contained the following allegations:

“(1) That the writ of habeas corpus should
not issue on the application filed herein, because the court is without
jurisdiction or authority to grant the privilege of the writ of habeas corpus
in the Province of Batangas, for the reason that on January 31, 1905,
the Governor-General, pursuant to a resolution and request of the
Philippine Commission, suspended said writ in the Provinces of Cavite
and Batangas, in accordance with the provisions of section 5 of the act
of Congress known as “The Philippine Bill,” the Philippine Commission
and the Governor-General basing such suspension upon the fact that
certain organized bands of ladrones in said provinces were in open
insurrection against the constituted authorities; and the said bands,
or parts of them, and some of their leaders, were still in open
resistance to the constituted authorities. The said resolution of the
Commission and the said proclamation of the Governor-General are in the
words following:

” ‘RESOLUTION OF THE PHILIPPINE COMMISSION DATED JANUARY. 31, 1905.

”
‘Whereas certain organized bands of ladrones exist in the Provinces of
Cavite and Batangas who are levying forced contributions upon the
people, who frequently require them, under compulsion, to join their
bands, and who kill or maim in the most barbarous manner those who fail
to respond to their unlawful demands, and are therefore terrifying the
law-abiding and inoffensive people of those provinces; and

”
‘Whereas these bands have in several instances attacked police and
Constabulary detachments, and are in open insurrection against the
constituted authorities; and

” ‘Whereas it is believed that
these bands have numerous agents and confederates living within the
municipalities of the said provinces; and

” ‘Whereas, because
of the foregoing conditions, there exists a state of insecurity and
terrorism among the people which makes it impossible in the ordinary
way to conduct preliminary investigations before justices of the peace
and other judicial officers: Now, therefore,

” ‘Be it resolved, That, the public safety requiring it, the Governor-General is hereby authorized and requested to suspend the writ of habeas corpus in the Provinces of Cavite and Batangas.

“Executive Order	“MANILA, January 31, 1905.
“No. 6.

”
‘Whereas certain organized bands of ladrones exist in the Provinces of
Cavite and Batangas who are levying forced contributions upon the
people, who frequently require them, under compulsion, to join their
bands, and who kill or maim in the most barbarous manner those who fail
to respond to their unlawful demands, and are therefore terrifying the
law-abiding and inoffensive people of those provinces; and

”
‘Whereas these bands have in several instances attacked police and
Constabulary detachments, and are in open insurrection against the
constituted authorities, and it is believed that the said bands have
numerous agents and confederates living within the municipalities of
the said provinces; and

” ‘Whereas, because of the foregoing
conditions there exists a state of insecurity and terrorism among the
people which makes it impossible in the ordinary way to conduct
preliminary investigations before the justices of the peace and other
judicial officers:

” ‘In the interest of public safety, it is hereby ordered that the writ of habeas corpus is from this date suspended in the Provinces of Cavite and Batangas.

(Signed) LUKE E. WRIGHT,

” ‘ Governor-General.’”

“(2)
Not waiving the question of jurisdiction, the respondents state that it
is true that Felix Barcelon was detained in the month of April, 1905,
by order of Colonel David J. Baker, jr., assistant chief of the
Philippines Constabulary, and that the said Barcelon is now detained
under the surveillance of Captain W. E. Thompson, senior inspector of
Constabulary, in the Province of Batangas.”

By this answer the respondents admit that they are detaining the
body of the said Felix Barcelon, and deny the right of this court to
inquire into the reasons therefor by virtue of the said resolution of
the Philippine Commission and the executive order of the
Governor-General, issued by authority of the same, suspending the
privilege of the writ of habeas corpus in the said Provinces of Cavite and Batangas.

Thus the question is squarely presented whether or not the judicial
department of the Government may investigate the facts upon which the
legislative and executive branches of the Government acted in providing
for the suspension and in actually suspending the privilege of the writ
of habeas corpus in said provinces. Has the Governor-General,
with the consent of the Commission, the right to suspend the privilege
of the writ of habeas corpus? If so, did the Governor-General suspend the writ of habeas corpus in the Provinces of Cavite and Batangas in accordance with such authority?’

A paragraph of section 5 of the act of Congress of July 1,1902, provides:

“That the privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion, insurrection, or
invasion the public safety may require it, in either of which events
the same may be suspended by the President, or by the Governor-General
with the approval of the Philippine Commission, whenever during such
period the necessity for such suspension shall exist.”

This provision of the act of Congress is the only provision giving
the Governor-General and the Philippine Commission authority to suspend
the privilege of the writ of habeas corpus. No question has
been raised with reference to the authority of Congress to confer this
authority upon the President or the Governor-General of these Islands,
with the approval of the Philippine Commission.

This provision of the act of Congress makes two conditions necessary
in order that the President or the Governor-General with the approval
of the Philippine Commission may suspend the privilege of the writ of habeas corpus. They are as follows:

(1) When there exists rebellion, insurrection, or invasion ; and

(2) When public safety may require it. In other words, in order that the privilege of the writ of habeas corpus
may be suspended, there must exist rebellion, insurrection, or
invasion, and the public safety must require it. This fact is admitted,
but the question is, Who shall determine whether there exists a state
of rebellion, insurrection, or invasion, and that by reason thereof the
public safety requires the suspension of the privilege of the writ of habeas corpus?

It has been argued and admitted that the Governor-General, with the
approval of the Philippine Commission, has discretion, when
insurrection, rebellion, or invasion actually exist, to decide whether
the public safety requires the suspension of the privilege of the writ
of habeas corpus; but the fact whether insurrection,
rebellion, or invasion does actually exist is an open question, which
the judicial department of the Government may inquire into and that the
conclusions of the legislative and executive departments (the
Philippine Commission and the Governor-General) of the Government are
not conclusive upon that question.

In other words, it is contended that the judicial department of the Government may consider an application for the writ of habeas corpus
even though the privileges of the same have been suspended, in the
manner provided by law, for the purposes of taking proof upon the
question whether there actually exists a state of insurrection,
rebellion, or invasion.

The applicants here admit that if a state of rebellion,
insurrection, or invasion exists, and the public safety is in danger,
then the President, or Governor-General with the approval of the
Philippine Commission, may suspend the privilege of the writ of habeas corpus.

Inasmuch as the President, or Governor-General with the approval of
the Philippine Commission, can suspend the privilege of the writ of habeas corpus
only under the conditions mentioned in the said statute, it becomes
their duty to make an investigation of the existing conditions in the
Archipelago, or any part thereof, to ascertain whether there actually
exists a state of rebellion, insurrection, or invasion, and that the
public safety requires the suspension of the privilege of the writ of habeas corpus.
When this investigation is concluded, the President, or the
Governor-General with the consent of the Philippine Commission,
declares that there exist these conditions, and that the public safety
requires the suspension of the privilege of the writ of habeas corpus, can the judicial department of the Government investigate the same facts and declare that no such conditions exist?

The act of Congress, above quoted, wisely provides for the
investigation by two departments of the Government- the legislative and
executive-of the existing conditions, and joint action by the two
before the privilege of the writ of habeas corpus can be suspended in these Islands.

If the investigation and findings of the President, or the
Governor-General with the approval of the Philippine Commission, are
not conclusive and final as against the judicial department of the
Government, then every officer whose duty it is to maintain order and
protect the lives and property of the people may refuse to act, and
apply to the judicial department of the Government for another
investigation and conclusion concerning the same conditions, to the end
that they may be protected against civil actions resulting from illegal
acts.

Owing to conditions at times, a state of insurrection, rebellion, or
invasion may arise suddenly and may jeopardize the very existence of
the State. Suppose, for example, that one of the thickly populated
Governments situated near this Archipelago, anxious to extend its power
and territory, should suddenly decide to invade these Islands, and
should, without warning, appear in one of the remote harbors with a
powerful fleet and at once begin to land troops. The governor or
military commander of the particular district or province notifies the
Governor-General by telegraph of this landing of troops and that the
people of the district are in collusion with such invasion. Might not
the Governor-General and the Commission accept this telegram as
sufficient evidence and proof of the facts communicated and at once
take steps, even to the extent of suspending the privilege of the writ
of habeas corpus, as might appear to them to be necessary to
repel such invasion? It seems that all men interested in the
maintenance and stability of the Government would answer this question
in the affirmative.

But suppose some one, who has been arrested in the district upon the
ground that his detention would assist in restoring order and in
repelling the invasion, applies for the writ of habeas corpus,
alleging that no invasion actually exists; may the judicial department
of the Government call the officers actually engaged in the field
before it and away from their posts of duty for the purpose of
explaining and furnishing proof to it concerning the existence or
nonexistence of the facts proclaimed to exist by the legislative and
executive branches of the State? If so, then the courts may effectually
tie the hands of the executive, whose special duty it is to enforce the
laws and maintain order, until the invaders have actually accomplished
their purpose. The interpretation contended for here by the applicants,
so pregnant with detrimental results, could not have been intended by
the Congress of the United States when it enacted the law.

It is the duty of the legislative branch of the Government to make
such laws and regulations as will effectually conserve peace and good
order and protect the lives and property of the citizens of the State.
It is the duty of the Governor-General to take such steps as he deems
wise and necessary for the purpose of enforcing such laws. Every delay
and hindrance and obstacle which prevents a strict enforcement of laws
under the conditions mentioned necessarily tends to jeopardize public
interests and the safety of the whole people. If the judicial
department of the Government, or any officer in the Government, has a
right to contest the orders of the President or of the Governor-General
under the conditions above supposed, before complying with such orders,
then the hands of the President or the Governor-General may be tied
until the very object of the rebels or insurrectos or
invaders has been accomplished. But it is urged that the President, or
the Governor-General with the approval of the Philippine Commission,
might be mistaken as to the actual conditions; that the legislative
department-the Philippine Commission-might, by resolution, declare
after investigation, that a state of rebellion, insurrection, or
invasion exists, and that the public safety requires the suspension of
the privilege of the writ of habeas corpus, when, as a matter
of fact, no such conditions actually existed; that the President, or
Governor-General acting upon the authority of the Philippine
Commission, might by proclamation suspend the privilege of the writ of habeas corpus
without there actually existing the conditions mentioned in the act of
Congress. In other words, the applicants allege in their argument in
support of their application for the writ of habeas corpus,
that the legislative and executive branches of the Government might
reach a wrong conclusion from their investigations of the actual
conditions, or might, through a desire to oppress and harass the
people, declare that a state of rebellion, insurrection, or invasion
existed and that public safety required the suspension of the privilege
of the writ of habeas corpus when actually and in fact no
such conditions did exist. We can not assume that the legislative and
executive branches will act or take any action based upon such motives.

Moreover it can not be assumed that the legislative and executive
branches of the Government, with all the machinery which those branches
have at their command for examining into the conditions in any part of
the Archipelago, will fail to obtain all existing information
concerning actual conditions. It is the duty of the executive branch of
the Government to constantly inform the legislative branch of the
Government of the condition of the Union as to the prevalence of peace
or disorder. The executive branch of the Government, through its
numerous branches of the civil and military, ramifies every portion of
the Archipelago, and is enabled thereby to obtain information from
every quarter and corner of the State. Can the judicial department of
the Government, with its very limited machinery for the purpose of
investigating general conditions, be any more sure of ascertaining the
true conditions throughout the Archipelago, or in any particular
district, than the other branches of the Government? We think not.

We are of the opinion that the only question which this department
of the Government can go into with reference to the particular
questions submitted here are as follows:

(1) Admitting the fact that Congress had authority
to confer upon the President or the Governor-General and the Philippine
Commission authority to suspend the privilege of the writ of habeas corpus was such authority actually conferred? and

(2) Did the Governor-General and the Philippine Commission, acting under such authority, act in conformance with such authority?

If we find that Congress did confer such authority and that the
Governor-General and the Philippine Commission acted in conformance
with such authority, then this branch of the Government is excluded
from an investigation of the facts upon which the Governor-General and
the Philippine Commission acted, and upon which they based the
resolution of January 31, 1905, and the executive order of the
Governor-General of the same date. Under the form of government
established in the Philippine Islands, one department of the Government
has no potcer or authority to inquire into the acts of another, which
acts are performed within the discretion of the other department.

Upon an examination of the law we conclude;

First. That the paragraph of section 5, above quoted, of the act of
Congress of July 1, 1902, confers upon the Governor-General and the
Philippine Commission the right to suspend the privilege of the writ of
habeas corpus under the conditions therein named.

Second. That the Philippine Commission, acting within the discretion
which such act of Congress confers upon them, did authorize the
Governor-General, by its resolution of January 31,1905, to suspend the
privilege of the writ of habeas corpus in the manner and form indicated in the said executive order of the Governor-General of January 31,1905.

The said resolution of the Philippine Commission has the effect of
law for the purposes for which it was enacted. The judicial department
of the Government may examine every law enacted by the legislative
branch of the Government for the purpose of ascertaining:

(a) Whether or not such law came within the
subject-matter upon which the legislative branch of the Government
might legislate; and

(b) Whether the provisions of such law were in harmony with the authority given the legislature.

If the judicial branch of the Government finds—

(a) That the legislative branch of the Government had authority to legislate upon the particular subject; and

(b)
That the particular law contained no provisions in excess of such
department, then that investigation, or that conclusion, conclusively
terminates the investigation by this department of the Government.

We base our conclusions that this application should be denied upon the following facts :

First. Congress had authority to provide that the President, or the
Governor-General, with the approval of the Philippine Commission, might
suspend the privilege of the writ of habeas corpus in cases of rebellion, insurrection, or invasion, when the public safety might require it.

Second. That the Philippine Commission, acting within this power,
had authority to pass the resolution above quoted, of January 31, 1905,
after an investigation of the conditions.

Third. That by virtue of said act of Congress, together with said
resolution of the Philippine Commission, the Governor-Getieral had
authority to issue the said executive order of January 31, 1905,
suspending the privilege of the writ of habeas corpus.

Fourth. That the conclusion set forth in the said resolution and the
said executive order, as to the fact that there existed in the
Provinces of Cavite and Batangas open insurrection against the
constituted authorities, was a conclusion entirely within the
discretion of the legislative and executive branches of the Government,
after an investigation of the facts.

Fifth. That one branch of the United States Government in the
Philippine Islands has no right to interfere or inquire into, for the
purpose of nullifying the same, the discretionary acts of another
independent department of the Government.

Sixth. Whenever a statute gives to a person or a department of the
Government discretionary power, to be exercised by him or it, upon his
or its opinion of certain facts, such statute constitutes him or it the
sole and exclusive judge of the existence of those facts.

Seventh. The act of Congress gave to the President, or the
Governor-General with the approval of the Philippine Commission, the
sole power to decide whether a state of rebellion, insurrection, or
invasion existed in the Philippine Archipelago, and whether or not the
public safety required the suspension of the privilege of the writ of habeas corpus.

Eighth. This power having been given and exercised in the manner
above indicated, we hold that such authority is exclusively vested in
the legislative and executive branches of the Government and their
decision is final and conclusive upon this department of the Government
and upon all persons.

Happily we are not without high authority to support the foregoing
conclusions. This is not the first time this same question has been
presented in one form or another to the judicial department of the
Government of the United States, as well as to the Government of the
various States of the Union.

The same general question presented here was presented to the Supreme Court of the United States in the case of Martin vs. Mott, in January, 1827. An act of Congress of 1795 provided—

“That whenever the United States shall be invaded or
be in imminent danger of invasion from any foreign nation ar Indian
tribe, it shall be lawful for the President of the United States to
call forth such number of the militia of the State or States most
convenient to the place of danger or scene of action, as he may judge
necessary to repel such invasion, and to issue his orders for that
purpose to such officer or officers of the militia as he shall think
proper.” In this, case (Martin vs. Mott) the question was
presented to the court whether or not the President’s action in calling
out the militia was conclusive against the courts. The Supreme Court of
the United States, in answering this question, said:

“The
power thus confided by Congress to the President is, doubtless, of a
very high and delicate nature. A free people are naturally jealous of
the exercise of military power; and the power to call the militia into
actual service is certainly felt to be one of no ordinary magnitude.
But it is not a power which can be executed without corresponding
responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion.
If it be a limited power, the question arises, By whom is the exigency
to be adjudged of and decided? Is the President the sole and exclusive
judge whether the exigency has arisen, or is it to be considered as an
open question, upon which every officer to whom the orders of the
President are addressed, may decide for himself, and equally open to be
contested by every militiaman who shall refuse to obey the orders of
the President? We are all of the opinion that the authority to
decide whether the exigency has arisen belongs exclusively to the
President and his decision is conclusive upon all other persons.
We think that this construction necessarily results from the nature of
the power itself and from the manifest object contemplated by the act
of Congress. The power itself is to be exercised upon sudden
emergencies, upon great occasions of state and under circumstances
which may be vital to the existence of the Union. * * * If a superior
officer has a right to contest the orders of the President upon his own
doubts as to the exigency having arisen, it must be equally the right
of every inferior officer and soldier * * * . Such a course would be
subversive of all discipline and expose the best disposed officer to
the chances of erroneous litigation. Besides, in many instances, the
evidence upon which the President might decide that there is imminent
danger of invasion might be of a nature not constituting strict
technical proof, or the disclosure of the evidence might reveal
important secrets of state which the public interest and even safety
might imperiously demand to be kept in concealment.

“Whenever
the statute gives a discretionary power to any person, to be exercised
by him upon his own opinion of certain facts, it is a sound rule of
construction that the statute constitutes him the sole and exclusive
judge of the existence of those facts. And in the present case we are
all of opinion that such is the true construction of the act of 1795.
It is no answer that such power may be abused, for there is no power
which is not susceptible of abuse” (Martin vs. Mott, 12 Wheat,. 19 (25 U. S.) ; Vanderhey-den vs. Young, 11 Johns., N. Y., 150.)

Justice Joseph Story, for many years a member of the Supreme Court
of the United States, in discussing the question who may suspend the
privilege of the writ of habeas corpus, under the Constitution of the United States, said:

“It would seem, as the power is given to Congress to suspend the writ of habeas corpus
in cases of rebellion, insurrection, or invasion, that the right to
judge whether the exigency has arisen must conclusively belong to that
body.” (Story on the Constitution, 5th ed., sec. 1342.)

Justice James Kent, for many years a justice of the supreme court of
the State of New York, in discussing the same question, cites the case
of Martin vs. Mott, and says:

“In that case it was decided and settled by the
Supreme Court of the United States that it belonged exclusively to the
President to judge when the exigency arises in which he had authority,
under the Constitution, to call forth the militia, and that his
decision was conclusive upon all other persons.” (Kent’s Commentaries,
14th ed., vol. 1, bottom p. 323.)

John Randolph Tucker, for many years a professor of constitutional
and international law in Washington and Lee University, in discussing
this question, said:

“By an act passed in 1795 Congress gave to the
President power to call out the militia for certain purposes, and by
subsequent acts, in 1807, power was given to him to be exercised
whenever he should deem it necessary, for the purposes stated in the
Constitution; and the Supreme Court (United States) has decided that
this executive discretion in making the call (for State militia) could
not be judicially questioned.’ (Tucker on the Constitution, Vol. II, p.
581.)

John Norton Pomeroy, an eminent law writer upon constitutional questions, said:

“In Martin vs. Mott it was decided that
under the authority given to the President by the statute of 1795,
calling forth the militia under certain circumstances, the power is
exclusively vested in him to determine whether those circumstances
exist; and when he has determined by issuing his call, no court can question his decision.” (Pomeroy’s Constitutional Law, sec. 476.)

Henry Campbell Black, a well-known writer on the Constitution, says:

“By an early act of Congress it was provided that in
case of an insurrection in any State against the government thereof it
shall be lawful for the President of the United States, on application
of the legislature of such State, or of the executive (when the
legislature can not be convened), to call forth such a number of the
militia of any other State or States as may be applied for, as he may
judge sufficient to suppress such insurrection. By this act the power
of deciding whether the exigency has arisen upon which the Government
of the United States is bound to interfere is given to the President.”
(Black’s Constitutional Law, p. 102.)

Judge Thomas M. Cooley, in discussing the right of the judicial
department of the Government to interfere with the discretionary action
of the other departments of the Government, in his work on
constitutional law, said:

“Congress may confer upon the President the power to
call them (the militia) forth, and this makes him the exclusive judge
whether the exigency has arisen for the exercise of the authority and
renders one who refuses to obey the call liable to punishment under
military law.” (Cooley’s Principles of Constitutional Law, p. 100.)

But it may be argued by those who contend for the contrary doctrine,
to wit, that the acts of the Governor-General, with the approval of the
Philippine Commission, are not conclusive upon the courts and that none
of the foregoing citations are exactly in point, that none of these
cases or authors treat of a case exactly like the one presented. We are
fortunate, however, in being able to cite, in answer to that
contention, the case of Henry William Boyle, where exactly the same
question was presented to the supreme court of the State of Idaho,
which the applicants present here and where the courts held the
doctrine of the cases applied. In the case of Boyle, he had been
arrested after the privilege of the writ of habeas corpus had been suspended. He applied for a writ of habeas corpus to the supreme court of Idaho, alleging, among other things, in his application:

First. That “no insurrection, riot, or rebellion now exists in Shoshone County;” and

Second. That “the Governor has no authority to proclaim martial law or suspend the writ of habeas corpus.”

In reply to this contention on the part of the applicant, Boyle, the court said:

“Counsel have argued ably and ingeniously upon the question as to whether the authority to suspend the writ of habeas corpus
rests with the legislative and executive powers of the Government, but,
from our views of this case, that question cuts no figure. We are of
the opinion that whenever, for the purpose of putting down insurrection
or rebellion, the exigencies of the case demand it, with the successful
accomplishment of this end in view, it is entirely competent for the
executive or for the military officer in command, if there be such,
either to suspend the writ or disregard it if issued. The statutes of
this State (Idaho) make it the duty of the governor, whenever such a
state or condition exists as the proclamation of the governor shows
does exist in Shoshone County, to proclaim such locality in a state of
insurrection and to call in the aid of the military of the State or of
the Federal Government to suppress such insurrection and reestablish
permanently the ascendency of the law. It would be an absurdity to say
that the action of the excutive, under such circumstances, may be
negatived and set at naught by the judiciary, or that the action of the
executive may be interfered with or impugned by the judiciary. If the
courts are to be made a sanctuary, a seat of refuge whereunto
male-factors may fall for protection from punishment justly due for the
commission of crime they will soon cease to be that palladium of the
rights of the citizen so ably described by counsel.

“On application for a writ of habeas corpus,
the truth of recitals of alleged facts in a proclamation issued by the
governor proclaiming a certain county to be in a state of insurrection
and rebellion will not be inquired into or reviewed. The action of the
governor in declaring Shoshone County to be in state of insurrection
and rebellion, and his action in calling to his aid the military forces
of the United States for the purpose of restoring good order and the
supremacy of the law, has the effect to put in force, to a limited
extent, martial law in said county. Such action is not in violation of
the Constitution, but in harmony with it, being necessary for the
preservation of government. In such case the Government may, like an
individual acting in self-defense, take those steps necessary to
preserve its existence. If hundreds of men can assemble themselves and
destroy property and kill and injure citizens, thus defeating the ends
of government, and the Government is unable to take all lawful and
necessary steps to restore law and maintain order, the State will then
be impotent if not entirely destroyed, and anarchy placed in its stead.

“It
having been demonstrated to the satisfaction of the governor, after
some six or seven years of experience, that the execution of the laws
in Shoshone County through the ordinary and established means and
methods was rendered practicably impossible, it became his duty to
adopt the means prescribed by the statute for establishing in said
county the supremacy of the law and insuring the punishment of those by
whose unlawful and criminal acts such a condition of things has been
brought about; and it is not the province of the courts to interfere,
delay, or place obstructions in the path of duty prescribed by law for
the executive, but rather to render him all the aid and assistance in
their power, in his efforts to bring about the consummation most
devoutly prayed for by every good, law abiding citizen in the State.”
(In, re Boyle, 45 L. R. A., 1899, 832.)

The doctrine that whenever the Constitution or a statute gives a
discretionary power to any person, to be exercised by him upon his own
opinion of certain facts, such person is to be considered the sole and
exclusive judge of the existence of those facts, has been recognized,
not only by the Supreme Court of the United States but by practically
all of the supreme courts of the different States, and has never been
disputed by any respectable authority. The following cases are cited in
support of this doctrine:

Martin vs. Mott (1827), 12 Wheat, 19 (25 U. S. Rep.).
Luther vs. Borden (1849), 7 How., 44, 77.
Wilkes vs. Dinsman (1849), 7 How., 130, 131.
Murray vs. Hoboken, etc., Co. (1855), 18 How., 280.
United States vs. Speed (1868), 8 Wall., 83.
Mullan vs. United States (1890), 140 U. 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. Case No. 4761).
Allen vs. Blunt, 3 Story, 745 (Fed. Case No. 216).
Gould vs. Hammond, 1 McAll., 237, 239 (Fed. Case 5638).
United States vs. Packages (1862), 27 Fed, Case, 288, 289.
United States vs. Cement (1862), 27 Fed. Case, 293.
United States vs. Cotton, (1872), 27 Fed. Case, 325, 328.
United States vs. Tropic Wind, 28 Fed. 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.
Evansville and C. By. Co. vs. Evansville, 15 Ind., 421.
Koehler vs. Hill, 60 la., 566. Peoples. Wayne (1878), 39 Mich., 20.
State vs. Town of Lime (1877), 23 Minn., 526.
People vs. Parker, 3 Nebraska, 432.
Kneedler vs. Lane (1863), 45 Penn. St., 292.
In re Legislative Adjournment (1893), 18 Rhode Island, 834; 22 L. R. A., 716.
Chapin vs. Ferry (1891), 3 Washington, 396; 28 Pac. Rep., 758; 15 L. R. A., 120.
Druecker vs. Solomon, 21 Wis., 621; 94 Am. Dec, 571.
People vs. Bissell (1857), 19 111., 229, 232, 233.
Sutherland vs. Governor (1874) 29 Mich., 320, 330.
Ambler vs. Auditor-General (1878), 38 Mich., 746, 751.
State vs. Warmoth (1870), 22 La. An. Rep., 1; 13 Am. Rep., 126.
Jonesboro, etc., Co. vs. Brown (1875), 8 Baxter (Tenn.) 490; 35 Am. Rep., 713.

In the case of the United States vs. Packages, above cited, the
court, in discussing the authority of the judicial department of the
Government to interfere with the discretionary powers of the executive
and legislative, said:

“The doctrine involved has been fully discussed in
several cases decided by this court during the last fifteen months, and
was virtually settled long ago by the United States Supreme Court. The
judiciary, under the Constitution, can not declare war or make peace.
It is clothed with no such power, and can not be clothed with it.
Whatever power is vested by the Constitution in one department of the
Government can not be usurped by another. If one should wholly refuse
to act, or should undertake to divest itself, or abdicate its
legitimate functions, it would by no means follow that another
department, expressly limited to specific duties, would thereby acquire
ungranted powers. The abdication of executive functions by the
executive, for instance, would not constitute the judicial the
executive department of the country; nor would a failure or refusal of
the legislative to pass needed statutes constitute the executive the
law-making power. Each department has its true boundaries prescribed by
the Constitution, and it can not travel beyond them. (United States vs.
Ferreira (1851), 13 How., 40; Little vs. Barreme (1804),2Cranch, 170.)

“The
condition of peace or war, public or civil, in a legal sense, must be
determined by the political department, not the judicial. The latter is
bound by the decision thus made. The act of 1795 and the act of July
13, 1861, vests the President with the power to determine when
insurrection exists, and to what extent it exists. The United States
Constitution vests Congress with the power to provide for calling forth
the militia to execute the laws of the Union, to suppress insurrection,
and repel invasion; to declare war * * * and make rules concerning
captures on land and water.’In the execution of that power, Congress
passed the act cited above.

“By the act of 1795 the Supreme
Court says: ‘The power of deciding whether the exigency had arisen upon
which the Government of the United States is bound to interfere, is
given to the President.’ * * * After the President has acted, is a
circuit court of the United States authorized to inquire whether his
decision was right? Could the court, while the parties were actually
contending in arms for the possession of the government, call witnesses
before it and inquire which party represented a majority of the people?
* * * If the judicial power extends so far, the guaranty contained in
the Constitution of the United States is a guaranty of anarchy, and not
of order. Yet if this right does not reside in the courts when the
conflict is raging; if the judicial power is at that time bound to
follow the decision of the political (department of the Government), it
must be equally bound when the contest is over. At all events, it (the
power to decide) is conferred upon him (the President) by the
Constitution and laws of the United States, and must therefore be
respected and enforced in its judicial tribunals.” (Luther vs. Borden
(1849), 7 How., 43, 44; Martin vs. Mott (1827), 12 Wheat, 29-31.)

The same doctrine has been uniformly maintained from the
commencement of the Government. The absurdity of any other rule is
manifest. If during the actual clash of arms the courts were rightfully
hearing evidence as to the fact of war, and, either with or without the
said juries, determining the question, they should have power to
enforce their decisions. In case of foreign conflicts neither
belligerent would be likely to yield to the decision; and, in case of
insurrection, the insurgents would not cease their rebellion in
obedience to a judicial decree. In short, the status of the country as
to peace or war is legally determined by the political (department of
the Government) and not by the judicial department. When the decision
is made the courts are concluded thereby, and bound to apply the legal
rules which belong to that condition. The same power which determines
the existence of war or insurrection must also decide when hostilities
have ceased- that is, when peace is restored. In a legal sense the
state of war or peace is not a question in pais for courts to
determine. It is a legal fact, ascertainable only from the decision of
the political department. (The Fortuna (1818), 3 Wheat., 236; United
States vs. Palmer (1818), 3 Wheat, 610; Nuestra Senora, etc. (1819), 4
Wheat, 497; Santissima Trinidad (1822), 7 Wheat, 283; Eose vs. Himely
(1806), 4 Cranch, 241; Foster vs. Neilson (1829), 2 Peters, 253.)

Under the act of Congress of July 13, 1861, the President of the
United States, on the 16th day of August, 1861, proclaimed that the
State of Tennessee was in a state of insurrection. The courts, in
discussing the right of the President to decide upon the necessities of
such proclamation and the period within which it should continue, said:

“The legal status thus determined must remain so
long as the condition of hostilities continues. He (the President) has
never made a counter proclamation, nor has peace been officially
announced. As a legal condition that status (of insurrection) is
independent of actual daily strife in arms. A legal condition of
hostilities may exist long after the last battle has been fought
between the opposing armies. That condition (of insurrection or
rebellion) ceases when peace is concluded through competent authority;
not before. * * * Within any construction which could be very well
given to the President’s proclamation, no part of that State
(Tennessee) maintains as yet a loyal adhesion to the Union and
Constitution. It is the duty of the President, however, to decide that
point. Until he declares to the contrary, the court must hold that the
legal condition of hostility continues. The exceptions in the
proclamation, so far as made by the President, courts can and must
enforce. But if it be correct that by the terms of that proclamation
the President intended to devolve on the courts the duty of determining
judicially the status of a State or part of a State by an inquiry into
its loyalty, or its occupation from time to time by the United States
forces irrespective of a decision thereon by the executive, still
courts could not then acquire the power. The limits upon their
constitutional and legal functions could not thus be enlarged.
Political power could not be so delegated to the courts. They (the
courts) can not be charged with any duties not judicial; ‘judicial
power’ alone is invested in them (the courts) under the Constitution.
(United States vs. Packages (1862), 21 Fed. Case, 288, 289.)”

In the case of Druecker vs. Solomon (21 Wis., 621; 94 Am. Dec, 571,
576, 577) the supreme court of Wisconsin, in an action for false
imprisonment for the arrest and detention during a state of
insurrection, etc., the court cites and approves of the doctrine laid
down by the Supreme Court of the United States in the case of Martin
vs, Mott (12 Wheat, 19) and holds that the action of the political
department of the Government in such cases is final and conclusive
against the judicial department.

John Marshall, for many years Chief Justice of the Supreme Court of
the United States, in discussing the rights of one department of the
Government to interfere with the discretionary powers of another, said,
in the case of Marbury vs. Madison ([1803], 1 Cranch., 137, 164) :

“By the Constitution of the United States the
President is invested with certain important political powers, in the
exercise of which he has to use his own discretion, and is accountable
only to his country in his political character, and to his own
conscience. * * * The subjects are political,’ they respect the nation,
not individual rights, and, being intrusted to the executive, the
decision of the executive is conclusive. The application of this remark
will be received by adverting to the act of Congress for establishing
the department of foreign affairs., This officer, as his duties were
prescribed by that act, is to conform precisely to the will of the
President; he is the mere organ by whom that will is communicated. The
acts of such an officer, as an officer, can never be examinable by the
courts. * * * The conclusion from this reasoning is that where the
heads of departments are the political or confidential agents of the
executive, merely to execute the will of the President or rather to act
in cases in which the executive possesses a constitutional or a legal
discretion, nothing can be more perfectly clear than that their acts
are only politically examinable.”

In the case of Rice vs. Austin (19 Minn., 103) the supreme court of
Minnesota held that “the judicial and executive departments of the
government are distinct and independent and neither is responsible to
the other for tire performance of its duties and neither can enforce
the performance of the duties of the other.” It may be said that in
Minnesota this decision was based upon a constitutional provision. This
is true, but the fact that the people of the State of Minnesota, by
constitutional provision prohibited one independent department of the
government from interfering or attempting to administer the duties of
another, all the more reenforces the doctrine contended for here. Many
of the States do permit the judicial department by mandamus to direct
the executive department to perform purely ministerial duties. In
Minnesota, however, the judicial department will not attempt to coerce
the performance of even ministerial duties on the part of the executive.

In the case of Luther vs. Borden (7 How., 44) it was held that the
decision and determination of matters of a purely political character
by the executive or legislative department of the Government was
binding on every other department of the Government and could not be
questioned by a judicial tribunal. The dangers and difficulties which
would grow out of the adoption of a contrary rule are by Chief Justice
Taney in this case clearly and ably pointed out. Chief Justice Taney,
referring to the power given to the President with reference to the
right to decide whether it was necessary, on account of a possible
invasion, to call out the militia, said:

“By this act (act of Congress of 1795) the power of deciding whether
the exigency had arisen upon which the Government of the United States
is bound to interfere is given to the President. * * * After the
President has acted and called out the militia, is a circuit court of
the United States authorized to inquire whether his decision is right?
Could the court, while the parties were actually contending in arms for
the possession of the government, call witnesses before it and inquire
which party represented the majority of the people? If it could, then
it would become the duty of the court (provided it came to the
conclusion that the President had decided incorrectly) to discharge
those who were arrested or detained by the troops in the service of the
United States or the government which the President was endeavoring to
maintain. If the judicial power extends so far, the guaranty contained
in the Constitution of the United States is a guaranty of anarchy and
not of order. Yet if this right does not reside in the court
when the conflict is raging, if the judicial power is at that time
bound to follow the decision of the political, it must be equally bound
when the contest is over. * * *

“It is said that this power in the President is dangerous. to
liberty and may be abused. All power may be abused if placed in
unworthy hands; but it would be difficult, we think, to point out any
other hands in which this power would be more safe, and at the same
time equally effectual. When citizens of the same State are in arms
against each other, and the constituted authorities unable to execute
the laws, the interposition of the United States must be prompt or it
is of little value. The ordinary course of proceedings in the courts of
justice would be utterly unfit for the crisis, and the elevated office
of the President, chosen as he is by the people of the United States,
and the high responsibility he could not fail to feel when acting in a
case of so much moment, appear to furnish as strong safeguards against
the willful abuse of power as human prudence and foresight could well
provide. At all events it is conferred upon him by the
Constitution and laws of the United States and must, therefore, be
respected and enforced in its judicial tribunals.’

Chief Justice Taney here cites approvingly the case of Martin vs. Mott.

In the case of Franklin vs. State Board Examiners (23 Cal., 173, 178) the supreme court of California decided—

“That the political department of a State government
is the sole judge of the existence of war or insurrection, and, when it
declares either of these emergencies to exist, its action is not
subject to review or liable to be controlled by the judicial department
of the State.”

In this case the court cited the cases of Martin vs. Mott and Luther vs. Borden.

This same doctrine was again recognized by the supreme court of
California in the case of the People vs. Pacheco (27 Cal., 175, 223),
not only resting its decision upon the case of Franklin vs. State Board
of Examiners but also again cited and confirmed the case of Martin vs.
Mott, Luther vs. Borden, and Vanderheyden vs. Young (11 Johns (N.
Y.),159).

Chief Justice Marshall, in the case of McCullough vs. State of Maryland (4 Wheat, 316), says:

“We think the sound construction of the Constitution must allow the
national legislature that discretion with respect to the means by which
the powers it confers are carried into execution which will enable that
body to perform the high duties assigned to it in the manner most
beneficial to the people. * * * Such being the case, the determination
of these questions by the political department of the Government must
also necessarily be conclusive.”

Chief Justice Taney, in the case of * * * ex parte Merryman, 17
Federal Cases, 144 (Fed. Case No. 9487), said, in speaking of the power
of the courts:

“It is true that in the case mentioned Congress is of necessity the
judge of whether the public safety does or does not require it (the
suspension of the writ of habeas corpus), and their judgment is conclusive,”

Chief Justice Taney, in the same decision, quotes the following language of Mr. Justice Story approvingly:

“It would seem as the power is given to Congress to suspend the writ of habeas corpus
in cases of rebellion or invasion, that the right to judge whether the
exigency had arisen must exclusively belong to that body.”

In the case of McCall vs. McDowell, 15 Fed. Cases, 1235 (Fed. Case No. 8673), Judge Deady said:

“When the occasion arises—rebellion or invasion- whether the ‘public
service’ requires the suspension of the writ or not is confided to the
judgment of Congress, and their action in the premises is conclusive
upon all courts and persons. * * *

“The suspension enables the executive, without interference from the
courts or the law, to arrest and imprison persons against whom no legal
crime can be proved, but who may, nevertheless, be effectively engaged
in forming the rebellion or inviting the invasion, to the imminent
danger of the public safety.”

In the case of Ex parte Field (5 Blatchford, 63) this same
question arose in the State of Vermont, and the supreme court of that
State, relying upon the decision of Mr. Justice Story in Luther vs.
Borden and that of Chief Justice Taney in Martin vs. Mott, decided that
the President is the exclusive judge of the existence of the exigency
authorizing him to call forth the militia and declare martial law, in
pursuance of the power conferred on him by the act of Congress of 1795.

Judge Emmons, in the case of United States vs. 1,500 Bales of Cotton
(Fed. Case No. 15958), in discussing this general question, said,
quoting from a decision of Chief Justice Chase:

“The belligerent relation having once been recognized by the
political power, all the people of each State or district in
insurrection must be regarded as enemies until, by the action of the legislature and executive, that relation is thoroughly and permanently changed. * * *

“The statute devolved upon the President the political duty of
determining whether armed force should be called out to put down
insurrection in the States. It was for him to decide when the exigency
occurred. The courts had no concern with it. * * * Whether there was
any necessity for the exercise of the power of the President to call
out the militia the court could not determine. His decision was final.
* * * If the judicial power were thus extended, the guaranty in the
Constitution of a republican form of government was a, guaranty of
anarchy, not of order. Equally incongruous results would
follow if the courts instead of the Government, were to decide when
hostilities are ended and when trade and intercourse should be resumed.”

Not only has it been decided in numerous cases that the power to call out the militia and to suspend the writ of habeas corpus is
entirely within the discretion of the legislative and executive
branches of the Government, but, when the executive and legislative
departments have decided that the conditions exist justifying these
acts, the courts will presume that such conditions continue to exist
until the same authority (legislative, etc.) has decided that such
conditions no longer exist.

Judge Dillon, in the case of Philips vs. Hatch (Fed. Case No. 11094, said:

“From the nature of the question, from the fair
implication of the act of July 13, 1861 (an act authorizing the
suspension of the writ of habeas corpus), from the confusion
that would ensue from any other rule, it is the opinion of the court
that the rebellion must be considered as in existence until the
President declared it at an end in a proclamation.”

Judge Emmons, in the above case, discussing this same question, said:

“These unquestioned doctrines have not been
extemporized for the modern and exceptional exigencies of the late
rebellion. They belong to the jurisprudence of all countries and were
adopted as part of that of our own from its earliest history. Our most
conservative judges, Marshall, Story, and Taney, have been foremost in
announcing them. No citizen would challenge the justness and necessity
of this rule. Judges have their peculiar duties which, if faithfully
and learnedly studied, have little tendency to make them familiar with
current and rapidly changing conditions upon which depend the important
political question of whether it is safe to relax, on the instant,
military rule and restore intercourse and trade.”

The following cases are also cited :

Brown vs. Hiatt, Fed. Case No. 2011.
United States vs. 100 Barrels of Cement, Fed. Case No. 15945.
Gelston vs. 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, 12 Peters, 511.
Stewart vs. Kahn, 11 Wallace, 493.
Mrs. Alexander’s Cotton, 2 Wallace, 404.

For a general discussion, see Sixth American Law Register, 766; 4 Chicago Legal News, 245;

No Government, past or present, has more carefully and
watchfully guarded and protected, by law, the individual rights of life
and property of its citizens than the Government of the United States
and of the various States of the Union. Each of the three departments
of the Government has had, separate and distinct functions to perform
in this great labor. The history of the United States, covering more
than a century and a quarter, discloses the fact that each department
has performed its part well.No one department of the Government can or
ever has claimed, within its discretionary power, a greater zeal than
the others in its desire to promote the welfare of the individual
citizen. They are all joined together in their respective spheres,
harmoniously working to maintain good government, peace, and order, to
the end that the rights of each citizen be equally protected. No one
department can claim that it has a monopoly of these benign purposes of
the Government. Each department has an exclusive field within which it
can perform its part, within certain discretionary limits. No other
department can claim a right to enter these discretionary limits and
assume to act there. No presumption of an abuse of these discretionary powers
by one department will be considered or entertained by another. Such
conduct on the part of one department, instead of tending to conserve
the Government and the rights of the people, would directly tend to
destroy the confidence of the people in the Government and to undermine
the very foundations of the Government itself.

For all of the foregoing reasons, the application for the writ of habeas corpus should be denied, and it is so ordered.

Arellano, C. J., Mapa, and Carson, JJ., concur.

---

CONCURRING

TORRES, J.:

After considering the provisions of the Philippine bill of July
1,1902, contained in paragraph 7, section 5 of said act, I have
concluded to concur in the grounds upon which the majority decision of
this case is based, and agree that the petition for a writ of habeas corpus
should be denied. By virtue of the decree of the 31st of January of
this year the writ was suspended in the Provinces of Cavite and
Batangas. The Governor-General, with the approval of the Commission,
had the exclusive power and jurisdiction to suspend the writ, when in
their opinion public safety should so require, in cases of rebellion
and invasion only. The fact that the writ has been suspended can not,
however, be used as a pretext for the commission of crimes defined and
punished in the Penal Code now in force in these Islands. The
application of said code has not been suspended in said provinces.

Article 200 of the Penal Code now in force provides:

“The public official who, unless it be by reason of
a crime, should detain a person without being duly authorized to do so
by law or by regulations of a general character in force in the
Philippines, shall incur the penalty, etc.”

Rules 27, 28, 30, and 34 of the provisional law for the application
of the Penal Code in the Philippine Islands give greater force to the
above-quoted section of said code. It provides that no person shall be
deprived of his liberty, except by reason of the commission of some
crime.

These provisions, although based upon different fundamental
principles, are, nevertheless, in perfect harmony with the provisions
of section 5, subdivisions 1 and 3 of the said act of July 1, 1902, in
that they provide that no law shall be promulgated in these Islands
that will deprive persons of their life, liberty, or property without
due process of law, and that no person shall be held to answer for the
commission of a crime except by due process of law.

Felix Barcelon has been detained for a long time in the town of
Lipa, Province of Batangas, not for the commission of any crime and by
due process of law, but apparently for the purpose of protecting him.
This detention, unless it is shown that some good reason exists
therefor, is absolutely illegal, notwithstanding the fact that the writ
of habeas corpus has been suspended in the Province of Batangas.

The honorable Governor-General, with the approval of the Philippine
Commission, decided, upon his own responsibility, that a state of
rebellion existed in the Provinces of Cavite and Batangas, and by
virtue of his authority suspended the writ of habeas corpus for the purpose of reestablishing peace, insuring public safety, and facilitating the prosecution and repression of rebels.

The writ was suspended with a view to averting the commission of
crimes, particularly those affecting public peace, by depriving
criminals of the privilege of the writ.

It would not be lawful, however, to violate the provisions of the
Penal Code under the pretext that the writ has been suspended. It would
not be lawful to rob or commit any other trespass upon the person,
rights, or property of citizens. The detention of Felix Barcelon is not
due to the commission of any crime. It is an actual trespass upon his
liberty and personal safety, committed by the police authorities, which
under no circumstances can be excused or justified by the temporary
suspension of the writ of habeas corpus.

The fundamental laws of Spain, a monarchy, the spirit and principles
of which are the basis of our Penal Code, and the provisional law for
its application, do not contain any provision in regard to the
privilege of habeas corpus, but they contain provisions which
guarantee to the citizen his individual rights. The supreme court of
Spain has held that not even where constitutional guaranties are
suspended can the executive authority order that a person be detained,
except for crime or for breach of the public peace, (Judgment of the
15th of March, 1877.)

Barcelon, the petitioner in this case, is neither a rebel nor a criminal; therefore his detention is illegal.

For the foregoing reasons I am of the opinion that the petition for habeas corpus
should be denied, and that criminal proceedings should be instituted
for the crime of illegal detention, defined and punished in article 200
of the Penal Code, and that it is the duty of the judge of the Court of
First Instance of the Province of Batangas to proceed against those
responsible for said crime.

---

DISSENTING

WILLARD, J.,:

The question in the case is this: Have the Governor-General and the Commission power to suspend the writ of habeas corpus
when no insurrection in fact exists? If tomorrow they should suspend
the writ in Manila, would that suspension be recognized by the courts?

That in such a case they ought not to suspend the writ and that
where no insurrection in fact exists they would have no right to do so,
are propositions which have no bearing upon the case. The question is,
Have they the power to do it?

Prior to the passage of the act of Congress of July 1, 1902, the
Commission had that power. They could suspend the writ, take it away
entirely from certain provinces, or repeal entirely the law which
authorized it to be issued. They had absolute control over it. (In re Calloway, 1 Phil. Rep., 11.)

By the decision of the majority in this case the Governor-General
and the Commission still have that power. The effect of this decision
is to give them the same power which the Commission exercise, before
the passage of the act of Congress of July 1,1902, In other words, that
part of the act which relates to the writ of habeas corpus
has produced no effect. It is repealed by this decision, and Congress
accomplished nothing by inserting it in the law. No construction which
repeals it should be given to this article. If a given construction
leads to that result it seems to me that it must be certain that the
construction is wrong. No other argument to prove that it is wrong is
needed. Congress must have intended that this provision should produce
some effect. To hold that it has produced no effect is to defeat such
intention.

But it is said that by the terms of the act, while the
Governor-General and the Commissioners have the power to suspend the
writ, they should not do it except in cases where insurrection in fact
exists, and they, being men of character and integrity, would not do it
except in such cases. As the Government is at present constituted, this
is undoubtedly true. This argument, however, is fully answered by what
was said by the Supreme Court of the United States in the case of Ex parte Milligan (4 Wallace 2,125):

“This nation, as experience has proved, can not
always remain at peace, and has no right to expect that it will always
have wise and humane rulers, sincerely attached to the principles of
the Constitution. Wicked men, ambitious of power, with hatred of
liberty and contempt of law,may fill the place once occupied by
Washington and Lincoln.”

With the exception of one case decided by the supreme court of
Idaho, no authorities are presented involving directly the construction
of the provision of the Constitution of the United States relating to
the suspension of the writ of habeas corpus, which provision is substantially the same as the one embodied in the act of Congress of July 1,1902.

That the judicial power has no authority to interfere with the
executive power in the discharge of the duties imposed upon the latter
by law is a proposition that no one denies. The question, however, in
this case is, Has the law conferred upon the executive the power to
decide conclusively whether a state of insurrection exists or not?

In the case of Martin vs. Mott (12 Wheat, 19, 28) the court said
that the construction which it gave to the act of Congress authorizing
the President to call out the militia “necessarily results from the
nature of the power itself, and from the manifest object contemplated
by the act of Congress”-that is to say, in determining what the words
of the law meant they relied almost entirely upon the nature of the
power given by the law, and the object contemplated by it. Those are
the things which should be considered in determining what construction
is to be given to the provisions relating to habeas corpus. The power
given by an act of Congress to the President, who under the
Constitution is the commander in chief of the militia when called into
the service of the United States, to call such men into military
service upon a sudden emergency, is in my opinion distinctly different
from the power given by the Constitution to Congress to suspend the
writ of habeas corpus so as to prevent a person already in
custody from having the cause of his detention inquired into by a court
of justice. The reasons which would lead a court to say that the former
power had been unreservedly intrusted to the President should not, I
think, be considered as controlling, when the extent of the latter
power is under discussion.

The effect of the suspension of the writ of habeas corpus,
and as it seems to me its manifest purpose, is to allow the Government
to commit an illegal act. It allows it to imprison a person who has
committed no offense, and for whose arrest and detention no warrant has
been issued by any competent court, and it leaves that person without
redress at the time for this unlawful act. In the case at bar it
appears from the return of the respondents that Barcelon is deprived of
his liberty without due process of law in violation of a provision of
this same act of Congress.

The privilege of the writ of habeas corpus was given to
protect the citizen from such arbitrary and illegal acts of either the
executive or the legislative power; the latter, that department which,
according to Madison in No. 47 of The Federalist, “is everywhere
extending the sphere of its activity and drawing all power into its
impetuous vortex.”

Is it probable that the people, in adopting the Constitution,
intended to give up to these departments of the Government against
which they needed protection perhaps the most important right which
could furnish that protection?

I do not think that the authors of the Constitution or the authors
of the act of Congress intended to so place this right in the hands of
these two departments that whether it should or should not be enjoyed
by the citizens would depend exclusively upon their will and pleasure.

For the reasons above stated, I dissent from the opinion of the court.