PARAS, J.:

Francisco Reyes  has instituted  this  original  petition, praying for the issuance of the writ  of  habeas corpus  on the alleged ground that, without having been charged with or convicted of any offense whatsoever,  the said Francisco Reyes, who is  a  civilian and, therefore,  beyond military jurisdiction, has been detained and imprisoned by the Provost Marshal of the Military Police, Philippine Army,  at Camp Murphy, since August 30, 1945,  and that the said Provost Marshal,  notwithstanding the representations properly made by or on behalf of the said Francisco Reyes, has refused and still refuses to  release the latter from such detention  and imprisonment.

The respondent Provost  Marshal,  in  his return, alleges that since August 31, 1945, or thereabouts, the petitioner, a first sergeant of the Philippine Army, has been committed to his custody upon a charge of desertion, in that the "said Francisco Reyes,  while assigned to 'K'  Company, 3rd Bn, 41st Infantry,  41st  Division, deserted  the service of the Philippine Army at Matabang, Abucay, Bataan, on or about the 31st day of December,  1941, and remained absent  in desertion until he was apprehended on or  about August 31,  1945."

On the other hand, the petitioner alleges that "he was properly discharged by his Commanding Officer on or about December 10, 1941, by virtue of an order  to  that  effect dated about the 2nd of November, 1941,  from Philippine Army Headquarters in Manila."

The decisive question that presents itself under the averments of the parties, is  whether the petitioner had  been discharged, as claimed by him, or is still a member of the Philippine Army,  as contended by the respondent.  We are of the opinion that said question, which is one of fact, should be raised before, and can  better be determined by, the proper military court  which, under the Articles of  War (Commonwealth Act No. 408),  has  unquestionable jurisdiction over the serious military offense of desertion.  Indeed, we cannot decide said factual issue without necessarily, touching the merits of the case for desertion, the claim that the petitioner had been discharged being a matter of  defense.  Even so, we shall presently make reference to certain  details just to demonstrate that no prima facie case which the  petitioner is  bound to  show has been established so as to even suggest that the military court has no jurisdiction or that petitioner's  confinement is illegal for lack of due process.  It is admitted that, notwithstanding the alleged discharge, the petitioner had remained with the Philippine forces in Bataan  twenty-one days thereafter. According to Article of War 109, no enlisted man shall be discharged  from the military service before his term has expired,  except  by order of the President, the Chief of Staff, or by sentence of a general court martial; and there is absolutely no documentary evidence in the record indicating that this requirement had  been complied with.  Upon the other hand, it is noteworthy that Article  of  War 71 provides, among other  things, that  "no  charge  will be referred for trial until after a  thorough and impartial investigation thereof shall hav.e  been made,"  and we have every reason to believe that the investigation had been convinced as to the sufficiency of the facts warranting at least the formulation and reference  of the charge of desertion.

In  this connection, it is likewise  noteworthy that the military  authorities had in this case strictly complied with the provisions of said Article of War 71 by taking the following steps:  On  July 26, 1945, an investigation was ordered.  This  was followed by the  corresponding report submitted on August 11, 1945.  On August  24, 1945, the Judge Advocate recommended  that  charges  be filed.  On August 31, 1945,  the petitioner was apprehended.  Soon thereafter,  or  on September 2,  1945, the  Adjutant General ordered the filing of formal charges.  A report was submitted to the  Chief of Staff on September 8,  1945.   The next day, September 9, 1945, formal charges were signed under oath by Lt. A. de la Cruz.

In view whereof, it cannot be seriously contended that the arrest and confinement of the petitioner are without any due process of law.  But it is insisted on behalf of the petitioner that the presentation  of the charge  of desertion against him has been or is being unreasonably delayed to the detriment of his legal and constitutional rights.   It is true that, under Article of War 71, charges against a person held for a trial by a general court martial should be forwarded within eight days, if practicable, after his arrest or confinement; but considering the explanation given by the respondent at the hearing of this case, we are not prepared to rule that there was  such  a delay as to make the detention and confinement of the petitioner illegal, specially in view of the uncontradicted circumstance that many officers or persons having knowledge of  the charge are stationed in different parts of th,e Islands and that there, are actually numerous cases pending investigation by the Army authorities.  While this Court  will not hesitate to grant without fear or favor, in clear cases of illegal confinement, the writ of habeas corpus, it  will be cautious and slow in interfering with the official acts of another agency of the government in the absence of  a showing that they are patently violative of  the  law or the Constitution,  It is undoubtedly  to  forestall  unavoidable situations that  the requirement in said Article of War 71 is not absolute, and should be fulfilled only "if practicable."  Moreover, if any one is in fact guilty of negligence or omission resulting in the alleged delay, he may be held accountable therefor also under Article of War 71.

Upon  the whole, we are constrained  to hold that the petition is without merit.   The  same  will therefore be,  as it is hereby, denied  without special pronouncement as to costs.  So ordered.

Moran, C, J., Jaranilla, De  Joya,  Pablo, and Hilado, JJ., concur.

CONCURRING

OZAETA, J.,

The facts are few and the issue is simple.  We think the case does not furnish  ample ground for the exuberance of the dissenting opinion, which consists  of 42 pages; states repeatedly  that "this  Court decided to  be lenient with respondent and harsh with the petitioner"; insinuates that the Court has sanctioned a continuous, flagrant violation oi the Constitution by the Philippine Army; indirectly charges the undersigned and the writer of the  majority opinion with consistency in  voting to grant  the writ in the Raquiza and Labrador  cases and to deny it in the present case, claiming that "the only difference consists in the fact that in the Raquiza  and Labrador cases  the officers responsible of the wrongful deprivation of the liberty of  the petitioners are Americans,  while  in the present case,  they are  Filipinos" insinuates that the Philippine Army was guilty of gross negligence and inefficiency in not filing a formal complaint for desertion against the petitioner more  promptly; quotes extensively from the cases of Ex Parte Milligan  (18 Law. ed., 281), and Johnson vs. Jones  (44 111., 142), in each of which a civilian accused of aiding the rebellion and convicted by a military commission was released  on habeas corpus for lack of  jurisdiction; and waxes  eloquent  on "Liberty or Death!" and on the tragic execution of Chief Justice Jose Abad Santos "in the field of a southern island, in the middle of towering columns  and feathery palms of coconut groves, under the panoply of  entrancing beauty of the Philippine sky."   On the other hand the majority opinion of four  pages  is, we think, too laconic under  the circumstances.   To restore  the sense of proportion and correct  erroneous impressions,  we are constrained to deliver this separate, modest opinion.

The petitioner Francisco Reyes was a reservist who was called to active duty  as first sergeant of the  Philippine Army in or before November,  1941.  He admits that  on December 31, 1941, he left his post of duty  in Bataan and caime to Manila  together with his brother Lt.  Fidel Reyes, and was unable to return there because the way was blocked by the enemy.   On or about August  31, 1945, he and his said brother were  arrested  by the  Provost Marshal  of the Philippine Army and confined at Camp Murphy "pending final disposition of the charges against them for desertion."  The order of confinement, dated August 31, 1945, was signed by Major Lope Quial, Assistant Adjutant General, by command of Major General Valdez.   The legality of the arrest  and detention of Lt. Fidel Reyes is not challenged  by him or on his behalf  before this  Court.

His brother Francisco Reyes, however, challenges  the jurisdiction of the military authorities over his person and the subject matter by alleging that before he left his post in Bataan  on December  31, 1941,  and since the  10th of the same month he had been discharged by his commanding officer by virtue of an order to that effect dated about  the end of November,  1941,  as shown  by the affidavit of  his brother Fidel Reyes, dated September 5, 1945, and annexed to his  petition herein as Exhibit A.  Said  affidavit certifies that on  or about December 10, 1941, as commanding officer of Company K, 41st Infantry Regiment, 41st Division, then stationed at Balayan, Batangas, the affiant discharged from the service First Sergeant Francisco Reyes of the  said company as  per order dated about the end of November, 1941 from Philippine Army headquarters in Manila.  During and  subsequent to the  hearing the petitioner filed in this case  the affidavit of  Melchor de Leon, a member of  the Philippine Army, to the effect that sometime during  the year 1941 he remembered  having come across  some  communications  relating to the discharge of former First Sergeant Francsico Reyes; the affidavit of Graciano de  la Cerna, another member  of the Philippine Army,  to the effect that "our  former First Sgt, Francisco Reyes and other  enlisted men were called  at the Regimental Command  Post  at Balayan,  Batangas, sometime between December 9  and 15,  1941, where they were  informed of their discharged from the Army"; and  the affidavit of Salvador Santos, another member of the Philippine Army,  stating:  "I  remember that First Sgt. Francisco Reyes together with other enlisted men were discharged as per orders from the Headquarters in Manila.  I came to learn  of this at Balayan, Batangas,  on or about  18th of December,  1941."

The return of the respondent  Major Juan  Crisologo, Provost  Marshal of the Military  Police,  Camp  Murphy, alleges among other things "that the said Francisco Eeyes has never been  discharged from the service of the Philippine Army from the date he was called into such service up to the present time by any competent authority."  The record of  the investigation conducted by the military authorities was presented to this Court during the hearing to enable the  Court  to determine  whether or not the petitioner is being detained and deprived of his liberty without due process of  law.

That question hinges on  the  factual  and jurisdictional issue of whether or not the petitioner had been discharged from  the Army before he  left  Bataan on  December 31, 1941.   If he had been discharged, he was no longer subject to military law and his detention should be declared illegal.  If he had not been discharged, he  was and still is a member of the Philippine Army amenable to the Articles  of  War (Commonwealth Act No. 408) and his detention pending final disposition  of the charge against him for desertion is lawful.

Almost immediately after his arrest,  that is to say, on August 31,  1945,  Francisco  Reyes was informed of the nature of the charge against him; namely, desertion, and he then and there testified under oath before Lt.  Francisco Gomez of the Investigation  Division.   In answer to the question  whether he had reported to  any processing camp, he stated: "I purposely do not report because of the fact that  I was  already discharged  officially at  Balayan, Batangas, about one day after our arrival where I was called in the Regtl CP accompanied by  Regtl  messenger or courier where I was explained of my discharge.   The officers  present were Col. Gallardo, Capt.  Lutherback,  Capt. Cruz and Dr. Dimayuga who explained the matter before the  above officials referring to me."   Interrogated as to how many were discharged on that particular date, he answered : "I do not remember how many of us but we were lined up single file when we were told we were discharged. The statement of the physician, Dr. Dimayuga, was this, 'Well, boys, I am very  sotrry that we received your order of discharge but you must remember  that the transportation now is difficult  and not only that also your food, you may not have  anything  to  eat  in  your place when  you go  home so you might  as well voluntarily  help me in the Medical Unit as boy.' "  Towards the  end of his testimony he   was  asked whether  he  desired  to have  additional witnesses called in  his behalf,  to  which  he replied: "I do  not know of any witness  except  Col. Gallardo, Capt. Salacop,  Gen, Valdez,  Capt.  Lutherback, Capt.  Cruz, Lt. Bayhon,  and Lt.  Dimayuga."

Thereafter and on the  same day Lt. Wenceslao D. Bayhon, Lt.  Alfredo  M. Dimayuga, and Lt. Ramon  Diaz were successively called  by  and  testified before  the  same investigator.  Lieutenant Bayhon testified under oath among other things as follows:

"Q. At the outbreak of  the war on 8 December 1941, were you already in the service of the  PA? A. Yes, sir.

"Q. Where were you assigned during the outbreak of the war? A.  I was Adjutant,  41st Inf., then stationed at Tres Cruces, Cavite, but  was transferred to Balayan, Batangas, on 8  December 1941.

"Q. How long were you adjutant of the 41st Inf.? A. I was Adjutant from 2  September  1941  to about 29 December  1941.

"Q. As  an Adjutant  have you come across any discharge papers of  first Sgt. Francisco Reyes? A. No, sir.

"Q. In all your time as Adjutant of the 41st Inf.  Regt.,  upon receipt of order from higher Headquarter, do you  transmit it to lower echelon verbally  or  in writing? A.  In writing1.

"Q. In other words, in case of discharge of any soldier, officers or EM, do you transmit it to the lower echelon always in writing? A.  My practice has been to send such orders or  communications to the  lower echelon by indorsement."

Lieutenant Dimayuga testified under oath among  other things as follows:

"Q. Where were you assigned at the outbreak of the war and what position did you occupy ? A. From 8 December 1941  up to 24th midnight December 1941, I was at Balayan and Tuy sector; then from the midnight of 24 December 1941 we left the place and proceeded to Bataan. I was then acting as  Bn. Surgeon of the 3rd Bn., 41st Inf. Regt., 41st Div.

*      *      *      *      *      *      *

"Q. Have you ever acted upon the discharge papers of first Sgt. Francisco Reyes of 'K' Co., 3rd Bn.} 41st Inf. Regiment? A. No."

Lieutenant Diaz testified under  oath among other things as follows:

"Q. As Batallion Adjutant, have you come across any discharge papers particularly that  of first Sgt.  Francisco Reyes of 'K' Co., 3rd Bn.? A.  Ever since September 1941, I remember that first Sgt. Francisco Reyes of our 'K.' Co., had been applying for discharge due to hernia or  something like that but we never received any  orders approving or  ordering his discharge."

Thus it will be seen that the officers of the Army whose duties placed them in a position to know whether the petitioner was discharged or  not, and who  wer,e mentioned by the petitioner himself  in his testimony among the witnesses  who  could  testify  as to his alleged  discharge, all disproved the petitioner's  assertion.  However, the Army's investigation has  not been completed; some of the  witnesses mentioned by the petitioner have not been heard.

Upon the evidence  before it this Court cannot see its way clear to sustain the petitioner's pretension  and to find that the military tribunal before whom  he is  due for trial on the charge of desertion has  no  jurisdiction over his  person and  the subject  matter.  We make no  definite finding  that the petitioner  was not discharged from the Army as claimed by Mm.  That has  to be determined by the  military tribunal  after  hearing all the witnesses for both parties.  We limit  ourselves to  the  pronouncement that the petitioner has not discharged the burden on him of proving that he is no longer a person subject to military law.

Even dissenting opinion does not find that the petitioner has been discharged.   It is based solely on the assumption that the petitioner is being detained without due process of law.  But "what  is due process of  law must be  determined by  circumstances.  To those  in the  military or naval service  of the United States the military law is due process."  (12 Am. Jur., Const. Law, sec. 578.)   The law  governing this case  is Commonwealth Act  No.  408, known as the Articles of War.  Under article 2 all reservists, from the dates of their call to active duty, are subject to military law.  That law  provides for  courts martial to try and sentence persons  subject to military law.  It defines  and penalizes  military offenses  and provid.es  the procedure  for their punishment.   Article 59 provides that any person subject to military law who deserts or attempts to desert the service of the Philippine Army shall, if the offense  be committed in  war time, suffer death  or  such other punishment as a court martial may direct, and, if the offense be committed at any other time, any punishment excepting  death that a court  martial may direct.  Article 70 provides that any person subject to military law charged with a crime or with a serious offense under these articles shall be placed  in confinement  or  in arrest, as circumstances may require, and that any person placed  in arrest under the provisions  of  this article shall  thereby be restricted to his barracks, quarters, or tent, unless such limits shall be enlarged by  proper  authority.  It is under this article,  in  relation to article 59, that the herein  petitioner is placed in arrest.

The dissent is laboring under the misapprehension that the failure of the Army authorities to file promptly a formal charge against the petitioner after his arrest constitutes a violation  of the Constitution regarding due process. But due process does not  mean haste, nor is it  synonymous with speedy disposition of the case.   It means process within and according to law.  It requires that the accused be given an opportunity to he heard and present witnesses in his defense before he is sentenced.  That has been  and is being done by the Army authorities in this case in accordance with articles 70 and 71 of the  Articles of War.   The exuberant dissent does not undertake to show in what  way the Constitution has been "continuously and flagrantly  violated."  Instead, it barks up the wrong tree by discoursing upon other matters outside the issue of the case, including, for instance, the atomic bomb.

In believing that the Court has been lenient to the respondent and harsh to the petitioner, the dissent mentions a first, a second, and a third hearing in this case, intimating that the last two were unnecessary but were held to favor the respondent.   There  was no such  thing.  There  was only one hearing which was  continued from  day to  day to arrive  at the truth  by giving both parties ample opportunity  to be heard.   As a  matter of fact, even after the hearing was closed  on September  12, 1945  the  petitioner asked and was allowed  twice to present two additional affidavits  on  September 14  and  19,  respectively. Was that  harsh to him?

The difference of race noted by the dissent between the Raquiza case and the present case is impertinent and unworthy  of notice.  What  is  pertinent  and  decisive  but which the dissent fails to notice is that in the Raquiza case there  was, in the opinion  of the dissenters, want of  due process of law, which is not wanting in the present case.

The  criticism of the  dissent against  the  efficiency of the Philippine Army is,  in our  opinion, not warranted by the facts and circumstances of  the case.  The records before us disclose that the delay in  the filing  of  a formal charge against the petitioner was  not due  to negligence or inefficiency but to the desire of  the Army authorities to investigate all available witnesses, including those mentioned by  the accused in his favor, before hje should be court-martialed.  The  delay was not to his prejudice but rather to his benefit, for  he was thereby given ample opportunity to be heard before  sentence could be passed on him all in consonance with the requirements of due process of law.

Lastly, let  us observe here that even granting for the sake of argument that the delay in the filing of a formal charge against the petitioner  constituted an infringement of his constitutional right to due process of law, as the dissenting opinion seems to hold, and that because of such delay alone th,e writ should be granted and the petitioner discharged from custody, still he could be rearrested the next day, the next hour, or even the next minute by order of the General Court Marital for  the military crime of desertion.  Section 17 of Rule 102  of the Rules of Court provides that  a person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful  order or process of a court having  jurisdiction of  the cause or offenses.   The dissenting opinion itself admits that the question of whether or not the  petitioner  is guilty of desertion "must he considered and decided by the proper tribunal in the proper case."  There  is no question  that the proper tribunal  is the general court martial and that  the proper  case is the very  one by reason of which the petitioner is placed in arrest.   So after all, of what avail would the issuance of the writ  have  been to the petitioner, if the minute after he were released he could be rearrested?

Feria, J., I concur in the foregoing opinion.

DISSENTING

PERFECTO, J., 

Petitioner Francisco Reyes is praying that he be restored to his liberty.

He alleges that since August 30, 1945, he has been unlawfully detained and imprisoned by Major Crisologo, Provost Marshal  of the Military Police, Philippine Army, at Camp Murphy; that he has not been charged, prosecuted, or convicted by any officer, judge or court whatsoever, or by any person authorized by law to render judgment for any offense; that he believes that the reason for his detention is that he has allegedly deserted from the Philippine Army when, in fact, he was properly discharged by his Commanding Officer on December 10, 1941, by vitrue of an order to that effect, dated about th,e end of November of said year, from Philippine Army headquarters in Manila; that he has demanded  his  immediate  release,  but  refused, and attempted by all means available to him to secure a copy of any charge, if ever there is any, but was unable to do so; that because he is a civilian and not an enlisted man, any further delay in his release from said  illegal detention, is to give violence to his  constitutional rights.

The respondent was ordered to show cause why the petition should not be granted, and the hearing of this case has been set on Monday, September 10, 1945, at 10 a. m.

As the respondent did not file any return or show  up at said hearing, this Court postponed the hearing until the next morning, ordering at the same time  the respondent to appear, bringing with him the body  of the petitioner, and to show cause why he should not be punished for contempt, for failing to  comply with the first order of this Court.

At the hearing set on September 11, 1945, the respondent appeared with  Captain  Nave,  who brought with him the person of the petitioner.

The respondent, besides showing a sample copy of a commitment signed  by Major Lope Quial, to  the effect that Francsico Reyes be detained pending proposal of a charge for desertion, could not give any  information  as to  the grounds for the restraint of the petitioner, or as to whether any formal charge has been filed against the petitioner or he is subject to any court martial proceedings.

Captain  Nave  was  also questioned, but he could  not furnish any information that can  enlighten this Court as to the reason for the  detention of the petitioner.

Answering to questions propounded by members of this Court, Francisco Reyes  stated that,  due to physical inability, which he is still suffering, he requested to be relieved  from the Army service since September, 1941, and that he was discharged on  December 10  of said year at Balayan, Batangas, but at the end of said month he went to Bataan to follow his brother Fidel  Reyes, who was Commanding Officer of  Company K, 41st Inf. Regiment, 41st Div.; that they came back days later, and at daybreak on January 1,  1942, when they were intending to  return to Bataan, they were unable to go through in view of the appearance  of enemy forces.

In order  to get more information, this Court had suspended the hearing several times  to  allow Major Lope Quial to  appear, and to verify whether any  formal charge has been filed against the petitioner.

Major  Quial stated, when he appeared before this Court, that he issued the order of commitment as a result  of an investigation and that instructions had been issued in order that formal charges be filed against the petitioner, but he has no knowledge of any charge filed so far.

The confidential report rendered  as a result of the investigation is dated August 11, 1945, and it therein appears that Francisco Reyes was not present during the investigation.  He was not even contacted by the investigators.

Major  Crisologo  and Major Quial were instructed to communicate with Army headquarters to inquire  whether any charge has been filed against Francisco Reyes, and both informed the Court that no  paper has been located in the Army offices to show that charges had been filed.

We believe that, under these-circumstances, the petitioner is entitled to be immediately released, as his detention is not based on any, legal ground.

In fact, even  after the first hearing, we were already of the opinion that  the order of release should be immediately issued, it appearing clearly that petitioner was deprived of his liberty without due process of law, in open defiance of the Constitution.

It must be  remembered that at the first hearing,  respondent did not appear either personally or through somebody else; failed to file the return ordered by this Court, for which reasons he was later ordered to show cause why he should not be punished for contempt; and did not make any answer or any showing as to the reasons and circumstances of the detention of the petitioner.

But  instead of ordering  the immediate  release of  the petitioner, when the further illegal detention of the same must not be tolerated, if our Constitution must be complied with, this Court decided to be lenient with respondent and harsh with the petitioner, by giving the respondent  another opportunity in another  hearing, which was set  for September 11, 1945.

In this second hearing, as we have seen, it also appeared very plainly that there was, that there is no legal justification for  restraining the liberty of the petitioner.  So we moved that redress be granted as prayed for in the petition, and the petitioner be immediately set free.

A majority of the Court thought wise to, once more, be lenient with the respondent, and, once more, harsh with the petitioner, by ordering another hearing, the third one, and granting the respondent further opportunity to file a return.

The third hearing was set for September 12, 1945.

On said  day Major Aranas appeared, gave information, argued, and at the same time filed a return in behalf of the respondent, stating that formal charges were prepared on September 9, 1945, which will be formally presented if  and when duly approved by the proper  officer.   The draft of said formal charges was presented as an appendix of the return.

We notice that, although said draft of formal charges is dated September 9, 1945,  the figure "9" appears  in  the return superimposed upon  an  erasure in the paper, where the traces of figure "11" are left.   Of th,e erased  figure, the first figure "1" can still be clearly read to the effect that, it seems, the real figure in  the paper is  "19," although figure "1" is somewhat blurred.

We have examined the carbon copy  served  on  the attorneys of petitioner, and said copy  bears exactly the same appearance of the original draft as to the date of the document, superimposed on the erased figure formerly written on the paper.

What we happened to note as to the date of the draft of formal charges led us to  justify the assumption that, as a matter of  fact, the draft of formal charges was not prepared on September 9, as alleged in the return, but on September  11,  most probably after the hearing  of this case which took place on the same date.

The above-mentioned assumption  compels us to conclude that said draft was presented to us to make us believe that, even before the hearings of this case on the 10th and 11th of September, definite steps have been taken for the filing of formal charges before a court martial against petitioner.

We cannot refrain from deploring the unfortunate means employed to make us appear that further detention of the petitioner is in some way justified.  We cannot countenance any attempt  at misrepresentation in a judicial case,  especially of such importance as is inherent  in all  cases where  personal freedom, constitutionally  guaranteed,  is at stake.

We shall  be  the  last to  allow  desertion unpunished. Much less when desertion is committed at a time when the territory, integrity and the national  freedom of the Fatherland are threatened by the hordes  of  an invading army. The dereliction of duty and cowardice shown by the deserter under such circumstances is a crime so heinous as flagrant treason  itself.  A deserter forfeits even the fundamental right to live in the country he betrayed.  He is shunned by his  country and by the rest of the world as a social outcast.

It is better for him to enjoy an eternal peace than to face the universal despise which will hang on him for the rest of his life.  The stigma of a political pariah shall brand his  forehead forever.

But the question here is not whether desertion should be left unpunished or not, which question must be considered and decided by the proper tribunal in the proper case, but whether a Filipino citizen is being deprived of his liberty without  due process of  law.   Liberty  is  a fundamental human right of paramount import, not only to the individual but also to the body politic.  No country can face the world with dignity if the liberty of their citizens is jeopardized. No  nation is free if  their citizens are not free.   "Give me liberty or give me death," clamored Patrick Henry, voicing the quintessence of human aspirations, the synthesis of the aims  in  life of all men, women,  and children,  and of all countries who want to enjoy a life of honor and dignity in the concert  of  nations.

In the present case, the constitutional mandate that no person shall be deprived of his liberty without due process of law has been continuously flagrantly  violated. The petitioner is  deprived  of his personal  freedom without any process at all.   No formal charges having been presented so far, which is the initial step in a desertion  case,  there is no process that justifies the undue and illegal restraint of the petitioner.

There is  no use alleging  that  the initial step for the proper process against the petitioner might  be taken within a few days or a week.  It is the question whether a  given principle must be maintained, and whether  we should obey  and give  full effect to what is  expressly provided in the  Constitution.  Shall  we, or  shall  we not obey  the Constitution?

From the viewpoint of our official duty,  we cannot conceive  of  any  possible  answer.  We   must   obey  the Constitution.

The petitioner is being held for alleged desertion, but no  formal complaint  has been filed  so far against him, notwithstanding the fact that  about twenty days  before his arrest an investigation has been  completed, and, as  a result of  it, a report submitted asserting that he  is guilty and must be prosecuted.

Is this enough to justify his apprehension and detention?

The Supreme Court of the United States of America,  in the leading case of Ex Parte Milligan (4 Wall., 2; 18 Law. ed., 281), applied the writ of habeas corpus to order the release of a person found guilty of aiding the  rebellion and sentenced by a military court to  be hanged.  That is, notwithstanding the fact that the guilt of said person has been proven conclusively while in  the  present case  not even a complaint has been filed.

Milligan was a citizen and resident of Indiana, which was not one of  the rebellious States  during the American Civil War.  Charged  with  aiding the  rebellion, he  was arrested by order of the commander of the military district of Indiana, tried by a military commission organized under the direction of  said commander, was found guilty, and was sentenced to be hanged.

Milligan sued out a writ of habeas  corpus in the district court of Indiana, and the case was certified to the Federal Supreme  Court.  The Supreme Court  issued the writ, holding that upon these facts neither the military  commander nor the military commission had  authority or jurisdiction to order Milligan's  arrest, or to try and sentence him, as Milligan  not being a member  of the  armed  forces, the offense charged against him was triable by the civil courts of Indiana.  The court said:

"Every trial involves the  exercise  of judicial power;  and from what source did the Military  Commission that tried him derive their authority?   Certainly  no part of the judicial power of the country was conferred on  them; because the Constitution expressly vests it 'in one Supreme Court  and such inferior courts as the Congress may from time to time  ordain and establish/ and it is not pretended that the commission was a court ordained and  established by Congress. They cannot justify on  the mandate of the President;  because  he is  controlled  by law, and has his appropriate sphere of duty, which is  to execute, not to make, the laws;  and there is  'no unwritten criminal code to which resort can be held as a source of jurisdiction.'

"But it is said that the jurisdiction is  complete under the laws and usages of war.

"It can serve no useful purpose to inquire  what those laws and usages are, whence they originated, where found,  and  on whom they operate; they can never be applied  to citizens in state,  which have upheld the authority of the government, and  where the courts  are open and  their process unobstructed.   This  court has judicial knowledge that in Indiana the Federal authority was  always unopposed, and its courts always open  to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offense whatever of a  citizen in civil life, in no wise connected with  the  military service.   Congress could grant no such power;  and to the honor of our national  legislature be it  said, it has never been provoked by the state of  the country even to  attempt its  exercise.  One  of the  plainest  constitutional  provisions was, therefore, infringed when Milligan was tried by a court not ordained and  established by  Congress,  and not  composed judges appointed during  good  behavior."

The court then inquired  why Milligan was not  proceeded against in the circuit court of Indiana,  saying:

"Why was he not delivered  to the  circuit court of Indiana to be proceeded against according to law?  No  reason of necessity could be urged against it; because Congress had declared penalties against the offenses  charged, provided  for  their punishment, and  directed that court to hear and determine them.  And soon after this military tribunal was ended, the circuit court met,  peacefully transacted  its business,  and adjourned. It needed  no  bayonets to protect it, and required no military aid to execute its  judgments.  It was held in a state, eminently distinguished for  patriotism,  by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected  by a  Marshal  appointed by  the President. The  government had no  right to conclude that  Milligan, if guilty, would  not receive  in that court merited  punishment; for its records disclose that it was constantly engaged in the trial  of  similar  offenses,  and  was never interrupted  in its administration  of criminal justice.  If it was dangerous,  in the  distracted condition of affairs, to leave Milligan unrestrained of his liberty,  because he 'conspired against the government,  afforded  aid  and  comfort to rebels, and incited the people to insurrection/ the  law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the  district, with proofs  of his guilt  and,  if indicted, try him according  to the course  of the common law.   If this had been  done, the Constitutioin would have been  vindicated,  the law of 1863  enforced, and the securities for personal liberty preserved and  defended."

It then proceeded to say that while members of the armed forces  might, with propriety,  be swiftly dealt with under the military  law, no such power exists in respect of other persons.

"The discipline necessary to the efficiency of the army  and navy, required other  and swifter modes of trial than are  furnished by the common law courts; and,  in pursuance of the power  conferred  by the Constitution, Congress has  declared the kinds  of trial and the manner in which they shall  be conducted, for offenses  committed while the  party is in the military or naval  service.  Every one connected with these branches of public service is  amenable to the jurisdiction which Congress has  created for their government, and, while thus serving, surrenders his right to be tried by the civil courts.

All other persons, citizens  of  states where the courts are open, if charged  with  crime, are  guaranteed the  inestimable privilege  of trial  by jury.   This privilege is a vital  principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered  away  on any  plea  of state or political necessity."

It concluded  its discussion  by saying:

"It follows,  from what has been  said on  this subject, that there are  occasions  when  martial rule can  be  properly applied.   If,  in foreign invasion  or civil war, the courts  are actually closed, and it is impossible to administer criminal justice according  to  law,  then, on the theater of actual military 'Operations, where, war  really prevails, there is a necessity  to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and  society; and as no power is left but the  military, it is  allowed to  govern  by martial rule until the laws can have their  free course.  As necessity creates the rule, so  it limits its  duration; for  if this government is continued after the  courts are reinstated, it is  a gross usurpation of power.  Martial  rule  can never exist  where  the courts  are  open, and in the proper and unobstructed exercise of  their jurisdiction.  It is also confined to  the locality of  actual war.  Because, during  the late  Rebellion  it could  have been enforced in Virginia, where  the national authority was overturned  and the courts driven out, it does not follow that it  should obtain in Indiana, where that authority was  never disputed, and justice was always administered.  And so in the case of a foreign invasion, martial  rule may become a necessity, in one state, when, in another, it would be 'mere lawless violence.'" (Italics ours.)

Another leading case is Johnson vs. Jones ([1867],  44 111.,  142; 92 Am.  Dec, 159).   In 1862, during the Civil War, Johnson, a resident of Illinois, was arrested by the defendant  Jones,  a United States Marshal, and by his  deputies the  other defendants, and was confined in military prisons in New York and Delaware, under an order of the President of the United States  issued on the ground that Johnson was "in  full  sympathy with the  rebels,  and  rendering them his  moral,  co-operation and aid."   It was urged  for the defendants that  plaintiff was  a war prisoner and his case could therefore be decided by the army.  This contention was rejected by  the court, on  the authority of the Milligan case, supra.

The court said, among other things:

"It cannot be denied that when this plaintiff was arrested without writ or warrant, and conveyed by the Marshal to the  city of New York, and there  delivered, not into the custody of the law upon a criminal  charge,  but to a  military officer, to be  imprisoned in a military fortress, without judicial investigation and  without even the charge of  crime, the  letter  and the spirit of all the foregoing provisions of the Constitution  were plainly violated, unless under  the state of faets set forth in  the pleas their operation as to the plaintiff had  been temporarily suspended.  Was  such the fact?  On the  answer to this question must  depend the decision of this case.

"It is urged by the counsel for the defendant that, although  the government cannot lawfully make an arrest of this character in time of peace, the power is necessarily  incident to a period of  war when exercised in  regard to those who are giving aid and comfort to  the enemy.  The argument, briefly stated, is as follows:   The facts set up in the plea, and admitted by the demurrer, show that the plaintiff was  co-operating with the rebels.  The  rebellion was more than an insurrection.  It  was a public war, as decided by the Supreme Court of the United  States in the Prize Cases, reported in  2 Black, 635, at least  after the passage of the act of Congress of July 13, 1861. Being a public war,  the  government  could exercise  both belligerent and sovereign rights.  While the rebels did  not cease to be rebels, they were at the same time public enemies, and the  government had the right so to treat them, notwithstanding they were citizens  of the United States.  It could exercise against  them as public  enemies all  the powers given or recognized by the laws of war; and if the plaintiff was co-operating with them  in the  manner stated in these pleas, he too was a public enemy, and liable, not merely to prosecution in the civil courts, but to be arrested and imprisoned by the military power as a prisoner  of war or a belligerent.

"We have tried to state the  argument of  the defendants' counsel fairly.  Its fallacy consists in the assumption that  the plaintiff,  by virtue of the facts  alleged in the pleas,  could be regarded as  a belligerent in any such sense as to make him a prisoner of war.

"If the plaintiff was a belligerent,  as insisted by the defendants'' counsel,  the order  of the  President  was  wholly  unnecessary  to authorize the arrest.  Any soldier has  the  right, in  time  of war, to arrest a belligerent engaged in acts of hostility toward the government,  and  lodge him in the nearest military  prison  and to use such force as may be necessary for that purpose,  even unto death.  This is the law of war, to which  the  defendants  appeal for their  justification.  Have counsel considered to what this theory of belligerency among our own citizens  would  have  led if  reduced to practical application in the late war?

"This  (The Milligan decision) is decisive authority  as to whether the plaintiff in  the  present  case  can be considered  as having been arrested and imprisoned  as a belligerent or prisoner  of war.  The principle, indeed, had already been settled  by the same court in the Prize Cases, above quoted, where they held that all  persons residing in the rebel states, whose property might be used to  support the hostile power, were liable to be treated as enemies without reference to  their personal loyalty.  This  is the settled doctrine that the status of any person as to the question of belligerency depends upon his citizenship or nationality.   The late rebellion grew to such consistency and magnitude that our own as well  as foreign governments recognized the people of  the  rebel  states as belligerents,  but the citizens and residents of  a Northern  State did not  become a belligerent whatever  may have been his sympathies, or  however wicked his plots.

"So  far, then, as it is sought to justify the arrest of the plaintiff by  assuming that he was arrested as  a belligerent and held as  a prisoner of war, the argument is untenable.  He was not a prisoner of war."

On the scope and limit of martial law, the  court said:

"But  beyond the enforcement of martial law on  the  actual field of military operations,  which is the result  of an overmastering necessity, and  its establishment  in  districts which, though  remote from  the  seat of war, are yet so far in sympathy  with the public enemy as to obstruct  the administration of the laws through the civil tribunals, and  render  a  resort  to  military power  a  necessity as the  only means  of restraining disloyalty from  overt acts,  and preserving the  authority of the government, we know of no  ground upon  which its exercise can  be  defended.  It  is  the result of  an absolute necessity during a period  of war, and should terminate with the necessity itself.  The  doctrine that a state  of war of itself suspends, at once  and everywhere,  the constitutional  guaranties  for liberty  and  property, finds  no -support in the  Constitution,  and is inconsistent with every principle of civil liberty and free government."

This  case  has never  been reversed and  that it  is looked upon as  leading case  is  shown by the fact that it  is cited in American  Jurisprudence.   (11 Am. Jur.,  653, 654.)

Ex-Associate Justice of the United States Supreme Court, R. B. Curtiss, wrote  in 1862 ("Executive Power") :

"What, then  is  the commanding  general's   authority  over  the persons and  property  of  citizen?   I  answer that over  all persons enlisted in his forces he has military power and command; that over all persons and property within the  sphere  of his actual operations in the field he may lawfully exercise  such constraint and control as the successful prosecution of his particular  military  enterprise may, in his honest judgment,  absolutely require *  *   *.

"But when the military commander controls the persons or property of citizens who are beyond the sphere of  his actual operations in the field, when he makes laws to govern their  conduct, he  becomes a legislator.   *  *  *  If he have the legislative power conferred on him by the people, it is well.  If not he usurps it.  He has no more lawful authority  to hold all the  citizens  of  the  entire country, outside of the sphere of his actual operations  on  the field, amenable  to his military edict, than  he has  to hold all the  property of the country subject to his military requisition.  He is  not the military commander of the citizens of the United States, but of its soldiers."  (Birkhimer, Military Government and Martial Law,  376, 377.)

As late as January of this year, it was said by  a United States District Court, Sullivan, J., that:

"The military necessity for action taken in the theater of war will not ordinarily be inquired into by the courts, but outside the theater of war the President, as Commander in Chief, does not have unlimited power over the persons and property of citizens,"   (United States vs. Montgomery Ward and Co., Jan. 27, 1945; certiorari denied by U. S. Sup. Ct., Mar. 12, 1945;  CCH War Law Service,  par. 3707.)

The  great principles  of constitutional  government  vis- a-vis the  war powers  of the executive are summarized in American Jurisprudence  in the following  language:

"Public danger may warrant the susbtitution of  executive process for judicial process, and a state may use its military power to put down an armed insurrection too strong to be controlled by the civil law, trial by the civil courts, and the operation of the writ of habeas corpus should be read and interpreted so as to harmonize with the retention in the executive and legislative departments of power necessary to maintain the existence of such guarranties themselves.   The fact that a military occupation of a territory, in  a state of peace and order,  differs  radically from  the  prosecution  of a war in the same territory, is well established.  Martial  law is  operative only in such portions of the country as are actually in a  state of war and continues only until pacification.  Ordinarily,  the  entire  country is in  a state of peace,  and,  on extraordinary  occasions  calling for military  operations, only small portions  thereof  become theaters of actual war.  In these disturbed areas the paralyzed civil authority can neither enforce nor suspend the  writ of habeas corpus, and it is powerless  to try citizens for offenses  or  to  sustain a relation of either supremacy or subordination to  the military power,  for in  a practical sense it has  ceased.  But in  all the undisturbed  peaceable, and orderly  sections, the constitutional  guaranties are  in actual operation and cannot be set  aside."   (11 Am. Jur., 653,  654.)

In the  dark and  hazy past, when liberty  was struggling to obtain a foothold among  the nations of the earth, the human  principle underlying the great Writ of  Habeas Corpus  first saw the light of day and at once grappled with tyranny and  oppression,  then so  prevalent  in  England, where a system of jurisprudence, though rude and rough, had done  much to uphold the onward march of civilization. Pollock and Maitland in their splendid "History of English Law, Before the Time of  Edward I," tell us that as early as 1187, A. D., "If a man was arrested he was usually replevied or mainprised: that is to say, he was set free as soon as sureties undertook or became bound for his appearance  in court."  Both Glanville and Braceton, England's earliest law writers, say,  "If a  man has been appealed or indicted of any felony, other than homicide, he is usually replevied."  Thus it will be seen that the  principle of liberty had early permeated the jurisprudence  of that day and  Pollock and Maitland in their history just cited, in describing the  gradual development of law  in  England in the twelfth  century, said: "Those famous words, HABEAS CORPUS, are making their way  into divers  writs, but for any habitual use of them for the purpose of investigating the cause of an imprisonment we must wait until a later time."  Along  about this  period it became a very common occurrence for the king's justices, unquestionably out of consideration for the persistent grumbling  of  the masses, but apparently upon their own motion, to clean out the various prisons of the realm and many prisoners long held on frivolous charges,  regained  their liberty,  and it grew more and more difficult to hold  even the political offender on the  mandate of the soverign.  This spirit of judicial resistance to royal tyranny, backed up by an even growing sentiment among the people favorable to justice and liberty gradually aroused the masses to  a full realization of the suffering and oppression to which they had previously submitted, not even offering the slightest protest.

The twelfth  century was the period which was noted for the greatest strides towards the "liberty of the subject," even-handed justice to all, without money, or price of favor and  the adoption of a more  humane policy towards those who were so unfortunate as  to  find themselves within the clutches of the law.  In England the king's courts had been focused at Westminster by mandate of the sovereign himself  and this  great central  judicial  system had absolute control over the whole province of  criminal justice.  To appease the rising storm and to satisfy justice's  demand infrequently a sheriff would be directed to send up prisoners to Westminster for trial.   However,  it  was  a  common complaint that the legal cause of the "caption and detention" was not always promptly investigated by the courts. The king's court must  not  set itself up against the will of the king, this had been a judicial truism for so long a time that the liberty of the people had been entirely forgotten.  The king's justices had always been his obedient servants, but the awakening came.   In 1234, the first royal court  of Westminster, through  Justice William  Raleigh, declared  null and void the outlawry of Hubert de Baugh, which the king himself had specially commanded.  His outlawry was adjudged to be wrong and unlawful by the court, over the  protest of the  sovereign,  and De Baugh  was released from  imprisonment  amid  great  public rejoicing. This signal victory of the law and its orderly administration over arbitrary power was a memorable event in the British Empire, second  only to  the great  Magna  Charta, and marked the very beginning of a new era in the courts, whereby they freed themselves and the king's will no longer held in confinement those who were charged with violating the mandates of royalty.  From thence on the king himself respected the majesty of the law.

The writ of Habeas Corpus so far as America is  concerned antedates the Declaration of Independence,  the Articles of  Confederation and the Constitution of the United States, coming to said country from the venerable  "Magna Charta,"  of A. D., 1215, and the grant of the common law to the colonies by the  mother country "for us  and our heirs forever."  Inherent and everlasting the privilege of the writ  stands "not to be suspended, unless  in  case of rebellion  or invasion the public safety may require it."

In an opinion by Chief Justice Chase, the Supreme Court of the United States  elaborately reviewed the history, purpose and nature of  his great writ.  Thus it is  stated: "The  great writ of habeas corpus has been for centuries esteemed  the  best and only sufficient defense  of personal freedom."  In England, after a long struggle, it was firmly guaranteed by the famous Habeas Corpus Act of May 27, 1679, 3 Brit. Stat. at 1397,  3 Hallam, Const. Hist. 19, "for the better securing the liberty of the subject,"  which, as Blackstone says, "is frequently considered as another Magna Charta."   (3  Bl. Com., 135.)

It was  brought to America by the colonists and claimed as among the immemorial rights descended to them from their ancestors.   Naturally, therefore, when the confederated colonies became United States, and the formation of a common government engaged their deliberations in convention, this great writ found prominent sanction  in  the Constitution.  That sanction is in these words: "The privilege of the writ of habeas corpus shall not be suspended unless when in  cases  of  rebellion or invasion, the  public safety may require it."

"The terms of this  provision necessarily  imply judicial action.  In England all the higher courts  were open to applicant  for  the  writ, and it is  hardly supposable that under the new government, founded on more liberal ideas and  principles, any court would  be intentionally closed to them.

"We find accordingly, that the first congress under the Constitution,  after denning by  various sections of  the Act of September 24, 1789, the jurisdiction  of the district courts,  the circuit courts  and the Supreme  Court in other cases, proceeded in the 14th section to enact 'that all the aforesaid  mentioned courts of the United States shall have power to  issue writs of scire facias, habeas corpus and all other writs not  specially  provided by statute,  which may be necessary for the exercise of  their respective jurisdictions, and agreeable to the  principles and usages of law.' (1 Stat. at L., 81.)  In the same section it was further provided: 'that either of the Justices of the Supreme Court as well as Judges of the  district courts, shall have  power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment; provided that writs of habeas corpus shall in no case extend to prisoners in jail, unless they are  in custody, under or by color of authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought before the court to testify.'

"That this court is one of the  courts to which the power to issue writs of  habeas corpus  is  expressly given by the terms  of this section,  has never been  questioned.  It would have been indeed a remarkable anomaly if this court, ordained by the Constitution for the exercise in the United States of the most  important powers in civil cases, of all the highest courts  of  England,  had been denied,  under a constitution which  absolutely prohibits the suspension of the writ, except under extraordinary exigencies, that power in cases  of  alleged unlawful restraint, which the Habeas Corpus Act of Charles II  expressly declares these courts possess.  But  the power vested  in this court is, in an important particular, unlike  that  possessed by the  English courts.   The jurisdiction of this court is conferred by the constitution and is appellate; whereas, that of the English courts, though declared and defined by statutes, is derived from the common law and  its original.

"The intent in respect to the writ  of habeas corpus is manifest; it is that every citizen may be protected by judicial  action  from unlawful  imprisonment."(Ex parle Gerger, 8 Wall., 85; 19 Law. ed., 332.)

Thus it was expressed by another court, with respect to its  use in the state courts: "Relief from  illegal imprisonment by means of  this remedial writ, is  not the  creature of any statute. The history of the writ is lost in antiquity. It was in use before Magna Charta,  and comes to use as part of our inheritance from the  mother country, and exists as a part of the common law of this state.   It is intended and well adapted  to effect the great object secured in  England by Magna Charta, and made a part of our Constitution that no persons shall be deprived of his liberty 'without due process of law.'   Whenever the virtue and applicability of the writ has been attacked or impugned, it has been defended and its vigor and efficiency reasserted, as the great bulwark  of liberty."  (People ex rel. Tweed vs. Liscomb, 60 N. Y. 559, 565; 19 Am. Rep., 211.)

The Federal Courts having no common-law jurisdiction, derive their power in respect to the writ,  from the Constitution of the United  States, and the laws passed in pursuance thereof,  while the power is  inherent in  the state courts of original jurisdiction by virtue of the common law, preserved by the  constitution of the states.

It is a prerogative writ, not ministerially issuable, that is not of  course,  and yet a writ of right on a proper foundation being made by proof.  At common  law it stood  on the same footing with other prerogative writs, such  as mandamus, quo  warranto, certiorari,  prohibition, etc., and was issued and  dealt with upon the  like  general grounds and principles.  Thus as  to the affidavit and motion for allowance, the form of the writ, the return, the right to question  the truth of the  return, the right to amend, etc., the  common-law  doctrine  respecting  other  prerogative writs is  applied to the writ  of habeas corpus,  and may still be resorted to by way of throwing light on the rules relating  to the latter.

The writ lies in all cases of  imprisonment by commitment, detention, confinement  or restraint for whatsoever cause or under whatever pretense.  In  this respect  the statute and common law are the same.

The great object of the writ is the  liberation of those who may be  imprisoned without sufficient cause.  It is in the nature of a writ of error  to  examine the legality of  the  commitment,  detention  or restraint;  the  proper remedy  for all  unlawful  imprisonment both in  civil and criminal cases;  the remedy which the  law  gives for the enforcement of  the civil right of personal liberty.   While it becomes necessary oftentimes to resort to it, where enforcement of laws for the punishment  of crime has been attempted, yet the proceeding  under the writ is not to inquire into the criminal act  which is complained of, but the right of liberty notwithstanding the  act.

The rule is that a  person  restrained  of  his liberty is entitled as a matter of right to the writ, upon presentation to the proper officer  or tribunal  of his  petition  showing proper ground therefor.

True, it was held,  where it was  obvious  that before a return to the writ could be made, or any other action taken, the restraint of which the petitioner complains, would have terminated, the court declined  to grant  leave to file the petition for a writ of  habeas corpus and certiorari; the court stating: "It is  well settled  that this court  will not proceed to adjudication where there is no subject matter upon which the judgment of the court can operate." (Ex parte Baez, 177 U. S., 378; 44 Law. ed.,  813; 20  Sup. Ct. Rep., 673.)

However,  it  can be said, that  such refusal was based upon the reason that sufficient grounds did  not appear to justify the granting of the writ.

True, also,  it was  said, application for leave to file a petition for a writ of habeas corpus will be denied if  it be apparent that the  only result,  if the writ were issued, would be remanding the prisoner.

This ruling was in effect that proper or sufficient grounds for issuing the writ did not appear.

In  most of  the  American states,  statutes have  been enacted providing for heavy  penalties in case any officer authorized to grant the writ, shall wilfully refuse  to grant it.

The general  rule is that in order to make a case for habeas  corpus  there  must be actual confinement or the present means  of  enforcing  it.  Mere moral restraint is not sufficient.

Its purpose ordinarily is to enable the court to inquire first,  if the petitioner  (or some  other person  in certain cases) is restrained of his liberty.   If he is  not, the court can do nothing  but  discharge the writ.  If there is such restraint, the court  can  then inquire into the cause of it, and if the alleged cause be unlawfull it must then discharge the prisoner. It was said  by Miller, J.,  in  Wales vs. Whitney (114 U. S., 564, 571): "There is no very satisfactory definition to be found in the adjudged cases of the character of the restraint or  imprisonment suffered by a party applying  for  the  writ of habeas corpus which is necessary to sustain  the writ.  This can hardly be expected from the variety of  restraints for which it  is used to  give relief.   Confinement under civil and criminal process may be so relieved;  wives restrained  by  husbands,  children withheld from the proper parent or guardian, persons held under arbitrary  custody by private individuals, as in  a mad house, as well as those  under  military control,  may all become  proper subjects  of relief by  the writ  of habeas corpus.   Obviously,  the  extent  and character of the restraint which justifies the writ must vary according to the nature of the control which is asserted  over the party in whose behalf the writ  is prayed."  Something more than moral restraint is necessary to make a case  for habeas corpus.   There must be  actual confinement  or the present means of enforcing  it.   What is meant by this  expression is illustrated by the facts to which  it was applied.  A court martial was ordered to try a surgeon general  of the navy  after he had  vacated that office  under charges  and specifications for conduct as chief of the bureau and  surgeon general; and the Secretary of the Navy notified  him thus: "You are  placed under arrest, and you will confine yourself to in the limits  of the City of Washington."  "It was  stated  that it  was  evident that  the  petitioner  was under no physical restraint.  As a naval officer,  the  Secretary of the Navy could order him to remain at Washington., and he could not leave without obtaining a leave of absence. There was no more restraint of  his  personal  liberty by the order of arrest  than there was before.  In cases of military officers, who are more or less at all times subject in their movements to the orders of their superior officers, it should be made clear that some unusual restraint upon his liberty of personal movement exists to justify the issue of the writ.   The distinction was made in case of an officer with a writ in his hands for the-arrest of a person whom he is  required to take into custody, to whom the person to be arrested submits without  force being applied.  The officer has the authority to  arrest and the power to enforce it.  If the party named in the writ resists or attempts to resist, the officer can summon bystanders of his assistance, and may himself use personal violence.  Here the force is imminent and the party is in presence of it.  It is physical power  which controls him, though not  called  into demonstrative action."   (Wales vs. Whitney,  114 U. S., 564;  29 Law. ed., 277;  5  Sup.  Ct.  Rep., 1050.)

The expression first referred to is further illustrated  by cases  where parties under  indictment have given bail for appearance to answer the indictment.   They may be under moral restraint, but are not under such physical restraint that habeas corpus will  lie.

In the last case cited it  was said: "The sheriff did not restrain him, since he had  admitted him to the benefits of the bonds; the doors of the jail were not closed upon him; and if he was detained, it was not by the sheriff or jailer. If his was a moral restraint it could not be an illegal one." All the provisions of legislative acts concerning this  writ contemplate a  proceeding  against some person who has the immediate  custody of  the  party  detained,  with  the power to produce the body of such person before the court or judge that, he may  be liberated if no sufficient reason is shown to the contrary.   In  case of  a person going at large with no one controlling or watching him  or detaining him, his body cannot be produced by the person to whom the writ is directed, unless by consent of the  alleged prisoner or  by  his capture  and forcible production into  the presence of the court.

The twenty-ninth  chapter of Magna Charta  says:  "Ne corpus liberi hominis capiatur nee imprisonetur nee disseisietur nee utlagetur nee exuletur, nee aliquo modo destruatur,  nee rex eat vel mittat super cum vi,  nisi per judicium parium suorCm, vel per legem terras."   No freeman shall be taken or imprisoned or disseized or outlawed or banished, or any ways destroyed, nor will the king pass upon him, or commit him to prison, unless by the judgment of his peers, or the  law of the land.

By this chapter "alone,"  says Sir William Blackstone, "would have merited the title that it bears  of the Great Charter."  (4 Bl. Com., 424.)

Justice Cooley, in his treatise on  "Constitutional Limitations"  (Chapter XI), expresses in this way: "The people of American States,  holding the sovereignty  in their own hands, have no occasion to exact pledges from any one for a due observance of individual rights; but the aggressive tendency of power is such, that they have deemed it of no  small  importance, that, in  framing  the instruments under which their governments are to be administered by their agents, they should repeat and re-enact this guaranty, and thereby  adopt it as a principle of constitutional protection.  In some form of words, it is to be found in each of the State constitutions; and  though verbal  differences appear in the several provisions, no chance in language, it is thought, has  in any case been made with a view to essential change in legal effect;  and the differences in phraseology will not, therefore, be  of importance in our discussion.  Indeed,  the language employed is generally nearly identical, except that the phrase 'due process (or course) of law'  is sometimes  used, sometimes 'the law of the land,' and in some cases both; but the meaning is the same in  every case.  And, by the fourteenth amendment, the guaranty is now incorporated in the Constitution of the United States."

In  the  famous Dartmouth College Case, Webster  gave the following oftenly  quoted  definition: "By the  law of the land,  is most clearly intended, the general law; a law which hears before it condemns; which  proceeds  upon inquiry,  and  renders  judgment only after trial.   The : meaning is, that every citizen  shall hold his life, liberty, property,  and immunities, under the protection of the general rules which govern society.  Everything which may pass under the form of an enactment, is not, therefore, to be considered the law  of the land."  (Dartmouth College vs. Woodward,  4 Wheat., 519; Works of Webster, Vol. V.) Then the great American orator,  lawyer  and statesman proceeds:  "If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land.  Such a strange construction  would  render constitutional provisions of  the highest importance completely  inoperative and void.  It would tend  directly to establish the  union of all powers in the legislature. There would be no general permanent law for courts to administer, or for men to live under.  The administration  of justice would be an empty form, an idle ceremony.  Judges would sit to execute legislative judgments and decrees; not to declare the law or to administer the justice  of the country."

Mr. Justice Edwards has said: "Due process of law undoubtedly  means, in  the due course of legal proceedings,j according  to those rules and forms which have been established for the protection of private rights."   (Westervelt vs. Gregg, 12 N. Y., 202, 209.)   And Mr, Justice Johnson of the Supreme Court, of the  United States: "As  to  the words from Magna Charta incorporated in the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the  good sense of mankind has at length settled down to this that they were intended to  secure the individual from the arbitrary  exercise of the  powers of government, unrestrained by the established principles of  private  rights and distributive  justice;"   (Bank  of Columbia vs. Okely, 4 Wheat, 235, 244.)

"A writ of habeas corpus is a writ of right of very ancient origin, and the preservation of its benefit is a matter of the highest importance to the people, and the regulations provided for its employment against an alleged unlawful  restraint  are not to be  construed or applied with over technical  nicety,  and when  ambiguous or doubtful should be interpreted liberally to  promote the effectiveness of  the proceeding."  (Ware vs.  Sanders, 146 Iowa,  233; 124  N.  W., 958.)

Habeas corpus must be granted when  one  is detained under a defective commitment (Republic,  etc. & Bynum, Dallam [Tex.] 376; where force deprives one of his liberty (In re Baker, 29 How. Pr. [N. Y.], 485);  where one is committed in default  of giving" bail,  by a Magistrate who has no authority to take bail (Com. vs. Ridgway, 2 Ashm. [Pa.], 247); where one has been committed or sentenced by  a magistrate whose  want of jurisdiction  appears upon the face of the proceedings  (Herrick  vs.  Smith,  1 Gray, 50; 61 Am. Dec, 381) ; where one has been held to answer for a crime  without the necessary statutory  conditions having been established against him  (People  vs. Lomax, 6 Abb. Pr. [N. Y.j,  139); where the warrant of  arrest was illegally served (Sanborn vs. Carleton, 15 Gray  [Mass.], 538); where excessive bail having been required of him, he  gives  bail  in  a reasonable sum  (Jones  vs. Kelly,  17 Mass., 116).

In  the case of Raquiza vs. Bradford   (p.  50,  ante) where this Court, by a majority opinion, denied the petition for a writ  of habeas  corpus, in a vigorous dissenting opinion, Mr. Justice Ozaeta, with  the  concurrence of  Mr. Justice Paras, said the following:

"The right to due process of law is more than a prerogative. It is an immanent and inalienable right of every man, woman,  and child living under a government of laws.  It cannot be  dispensed with or brushed aside either in time Of war or  in time of peace. In  time of war  martial law may be  declared.  But even under martial law appropriate tribunals such as courts-martial are set up to hear and decide the case before anybody can be punished."

Since Japan accepted the Potsdasm allied declaration and signed at the Tokyo  bay the document of formal unconditional surrender on September 2, 1945, said Justices and ourselves agreed in the proposition that war in the Philippines, in fact, in the whole world, has ended.

The situation in our country is one of peace and, therefore,  there are no  emergency nor extraordinary circumstances  that  might  justify in not  faithfully, scrupulously, and religiously upholding the constitutional guaranties for individual rights.

In another case recently decided by this Court (L-29), wherein the  petition  of Alejo Labrador, former member of the House of Representatives and former Judge of First Instance of the Commonwealth, to be released from an illegal detention was denied by a majority  vote, as  the circumstances were substantially  identical to those  pertaining to the Raquiza vs. Bradford case, Mr. Justice Ozaeta, Mr. Justice Paras and ourselves dissented also, because we were of the opinion that the petitioner was entitled to his immediate liberty, of which  he was deprived without  due process of law, in fact, without any legal process at all.

The fact that  Labrador was wrongfully detained was recognized by the  Commonwealth Government  when, as soon as said petitioner was transferred  from the  American Army control to that of our civil government, the  Commonwealth released him, without  even requiring him to file any bond.

The present case  of petitioner Francisco Reyes is substantially identical to the  Raquiza and  Labrador cases.  In all three cases the victims suffered  illegal detention without any  complaint filed against them, without due process, without any  process.

The only difference consists in the fact that in the Raquiza and Labrador cases the officers responsible for the wrongful deprivation of the liberty of the petitioners are Americans, while in the  present case, they are Filipinos.

It is  evident that whether  the authors of the wrongful detention are Americans or Filipinos do.es not make any difference as to the legal question presented.

Wrong and right  have no  place of birth.   Wrong and right are not distinguishable by reason of nationality.  The flag under which they are done does not make wrong right, nor right wrong.  Illegal detention, whether committed by this or  that  national,  remains to be illegal until righted by the proper redress.   A violation of the Constitution continues to be a violation whether perpetrated by an American or by a Filipino.

In the question of personal freedom  and the  necessity of protecting it from official abuses, we stick to the principles and the philosophy espoused in our opinions in the case of  Raquiza vs. Bradford (L-44).

The majority seems to rely more on the question as to whether there is  or there is not a proper case of desertion against th,e petitioner,  than on the question whether the petitioner is deprived of his liberty without due process of law.

Whether the petitioner is  guilty or  not the crime of desertion is not an issue in this habeas corpus case.   This is not a case wherein we can investigate his guilt.  This is not a criminal proceeding where the petitioner  could be tried for the offense  imputed to him.   No complaint has been filed before  us to justify our trying any offense.

Let us  remember  that this is  a case  of  habeas corpus. It is a case where the main and only question is whether the petitioner should be freed or not, whether he is illegally detained, whether he is entitled to the constitutional guaranty that no  person shall be deprived of his liberty without due process of law.

What we must determine, therefore, is whether there is due process for the detention of the petitioner.

The facts we  have before us show conclusively that the petitioner is being deprived of his liberty, not only without due process of law, but without ANY PROCESS at all.

Suppose, instead of simply depriving the petitioner of his personal freedom, he is killed.  Is  there any due process, or any process at all, that in this case may justify the deprivation of his life?

Shall this Court acquit the authors of the homicide or assassination on the strength of the circumstances under Which it denies the petitioner of his constitutional right to be free in the present case?

The majority  tries to show that  it is reasonable to presume that the investigation  of the case of  the petitioner had been satisfactory as to the sufficiency of the facts warranting at least the formulation and reference of the charges of desertion, but forgets that there are no formal charges filed so far and,  therefore, there is not any process initiated to warrant the arrest of the petitioner.  The draft of the complaint presented is yet to go through the long process of red tape before  it can be  filed, if the  Chief of Staff approves its filing, as stated by Major Aranas.

The majority also tries to justify the violation  of the precept  in Article of War 71 to the effect that charges ¦should, be forwarded, that is formally filed, within eight days  after the  arrest  or confinement,  by giving undue weight, to the additional testimony taken from several Army officers after the detention of the petitioner.

But the delay is absolutely unwarranted.  In the report as to the result of the investigation it is stated that enough evidence was there at hand to show conclusively  the guilt of the petitioner.  The report is dated 11th of August, 1945.

From then on,  very many days  were  at the disposal of the persons who  haves the duty of taking  charge  of the prosecution to file the formal complaint.

This could have been filed much  before the arrest of the petitioner oft:August BO,  1945, the real date of the arrest, as stated at the hearing by Major Aranas, and not August 31, as appears in the return.

How long does it take to prepare and file the complaint? Minutes?  Hours?   Days?  Is one hour  or even one day riot enough?

We  cannot believe that the Philippine Army, from August 11, 1945, to the day of the last hearing  of this case, more than one month later, that is, on September 12, 1945, was unable to attend to  the simple matter of preparing and filing a formal complaint for desertion, when the necessary evidence was already at hand.

It would be a terrible indictment of gross negligence and inefficiency for an official organization of our Government, precisely the same which, for reasons of  efficiency, has to undergo an exceptional system of training and discipline.

If in the military service we cannot have efficiency, in what part of the Commonwealth  Government can we  expect any efficiency at all?

If in more than one month it cannot prepare and file a formal complaint for desertion, which is usually  drafted by filing a printed form with a few typewritten lines and the signature of the  accusing officer, as can  be seen in the draft submitted to us with  the return, what  defense can our country expect from such organization in case of danger of a new invasion?

Whether the petitioner has been discharged, as claimed by him, or is still a member of the Philippine Army,  as contended by  the respondent, that is, whether  the petitioner committed  desertion  or  not,  from the point of view of the majority is the "decisive question that presents itself under the averments of the parties."

And immediately adds: "We are of the opinion that said question, which is one  of fact, should be raised  before, and can better be determined by, the proper military court which, under the Articles of War (Commonwealth Act No. 408), has unquestionable jurisdiction over the serious military offense of desertion."  Admitting that "we cannot decide said factual  issue  without necessarily  touching the merits of the case for desertion."

The majority  proceeds, notwithstanding, to consider and make pronouncements on the very merits of  the  alleged desertion and to decide the factual issue which from their very words, belongs properly  to the jurisdiction of a military court.

Why this inconsistency?  Simply because no chance has been  given  so far to a  military court to take cognizance of the question,  as a result of the complete absence of any process that could justify the  arrest and confinement of the petitioner.

While  we may  satisfy ourselves that  we  are  adhering strictly to our profession to be cautious and slow in interfering with the  official acts of another agency of the Government, because there is no proceeding before any military court to be interfered with, as in this case no formal complaint has  been filed, we cannot but confess that we are missing the real issue in this habeas corpus case by intruding in the  military jurisdiction over  the desertion case, which should properly be presented before a court martial, and by not putting aside completely  the question as to whether the petitioner deserted or not, whether  he was discharged or not, when the real question that we must answer is whether the petitioner is being deprived of his liberty without due process of law.

"No person shall be deprived of life, liberty,  or property without due process of law, nor shall any person be denied the  equal protection of the law."  (Sec,  1  [1],  Art,  III,  Constitution  of the Philippines.)

The petitioner is a person.  He has been deprived of his liberty since August 30, 1945, that is for two weeks already. The deprivation  of liberty has been done without due process of law.  Without any process of law.

Here we have a clear, undisputable, flagrant violation of the Constitution.

It is unbelievable that such violation of the Constitution has been committed, is being committed by members of the Philippine Army, whose gallant soldiers fought in thousands of fronts  of  heroic (battle, in Bataan and  Corregidor, to , keep burning in our land the faith in the great  democratic ideals, among them, personal liberty.   It is unbelievable that after the hour of liberation, what the hated Japanese kempei did could be wantonly repeated under the shadows of the American and Filipino flags.  It is unbelievable that these flags could not now offer the protection that we have always expected, whenever a fundamental human right was in danger.

Shall we believe that  the dreadful shadows of the Fort Santiago Kempeis  are still haunting us with irretrievable tenacity?  Shall we believe that the liberation  which was accomplished  so spectacularly was just a beautiful dream, now replaced by the most  horrible nightmare,  which will : keep us constantly trembling for our precarious personal liberty, always exposed to be snatched from us by a Filipino version of the Japanese military police?

The victim of a  flagrant violation of the Constitution comes toi us for protection.   The tribunals are the palladium of the civil liberties of the people.  They are the sanctuary where the fundamental human  rights  are safeguarded. Shall  we fail in the crucial hour of actual test?  Shall we disappoint the unfortunate  victim?  This is the last asylum where the victim can resort to.  Shall we reject him with freezing indifference?  Here comes for salvation a drowning man.   Shall we throw him to his  doom?  From the deepest bottom of our souls surges a powerful No, as an overpowering answer.  No. We cannot do that. We must protect the victim. It is our unavoidable duty.  It is an imperative mandate of the conscience.

No. One thousand times, no.  We will not remain deaf and unmoved at the clamoring voice which, in the wilderness of injustice, is resounding with pathetic tragedy.  We cannot deny our help to  a  citizen  who, before our own eyes, is writhing under the shackles of an illegality.  He is knocking at the doors of the temple of justice.   Shall we let him remain under the rain and storm of iniquity?  He is appealing to five decades of American democracy and Anglo Saxon law, to four centuries of Roman jurisprudence and Christian charity, to milleniums of oriental human understanding and Malayan heredity of fair play.  We cannot be unfaithful to such magnificent traditions, the priceless spiritual and moral treasure of our people.  We must keep them pure, untarnished, resplendent, for all generations to come.

If we  allow unheeded the petition in  this case, under the circumstances that depict  an utter disregard  of  the constitutional mandate that no person shall be deprived of his liberty without due process of law, we will be sanctioning here the establishment of an army tyranny, flaunting the  most sacred  rights of our citizens.   We had more than enough with the Japanese Army tyranny, and we faced all  kind of hardships and sacrifices, we defied death, to overthrow it.   At last we  can  breathe freely, because the American forces of liberation, the  Filipino soldiers,  our heroic guerrillas, were able to defeat it.  Shall  we permit that it be replaced by another tyranny,  because the new tyrants are our countrymen?  Never.  All tyranny, shall always  be hateful, without excluding a Filipino tyranny. Numerous pages of  the history of the world are stained by  the blood spilled in revolutions and rebellions against all  tyranny, either from outsiders or from  insiders.  Let us  avoid, by all possible means, the bitter  experience of oppressed peoples.  Let us wipe out all causes for popular unrest.

Soon our country will enjoy national independence. Soon under our sky we will have waving alone the flag of the free Republic of the Philippines.  Let us endeavor to insure its  stability, by eliminating all  injustices and iniquities, all kinds of oppression and tyranny.   To achieve that patriotic purpose, there is no  better way than to uphold the Constitution, to obey the laws,  to  require all officials, civil and military, to stick to  their duties, and to respect  and' to protect the civil rights and freedom of the people.

In the  present case  we have  the  golden opportunity of rendering that national and human  service.  Let us not miss such opportunity.

Recent statements  regarding  the  atomic bomb seem to cloud again the future of the world.   One  scientist said that, as the principles upon which it is based are universally known, eventually other countries will be able  to manufacture the terrible weapon.  And one of the scientist :who helped manufacture  it in America  said that there is no defense possible to shield a country against the atomic bomh. This might be correct from the  physical or material view point.  Therefore, it seems that mankind is doomed, there being an apparent agreement that  with said bomb  it is possible to destroy all the inhabitants  of the world.

But  this pessimistic point of view  does not  take into consideration the force of right, the influence of  justice in human actions.  It is a point of view based on lack of faith in the ethical and juridical sense of humanity.   Of course, if we have  no dispense with all sense of right, with all principles of justice, then the collective doom of men will be inevitable, even without the atomic bomb or any other weapon of the same  tremendous  destructive force.  But, fortunately, men still have faith  in the  principles of justice, and  on that faith hinges the salvation of humanity.

When we were under the Japanese regime, no ohfe dared to talk loudly with any Japanese, much less to show him any kind of opposition, even though  to press a right. But the reign of  terror  disappeared.   And,  now, the  humblest citizen may, freely and without any danger to his person and civil liberties, criticize the American Army, the strongest in the American  and Asiatic continents, the American Navy, the greatest in all history, and  the  American Nation, the most powerful world power.   Why is  it that a single Japanese was more  dreaded than  the whole strength of America?  Because the Japanese knows no right, while the Americans abide by law and justice.   An ideological chasm of ethical character is the one that establishes the difference among both situations.  That is, law and justice, when duly acknowledged, are strong enough-to control the greatest power imaginable.  L&w and justice are therefore the hope of our people, of all peoples, of all mankind.  Our salvation and the salvation of all men depend on law and justice, and law and justice in the service of fundamental human rights, among them, personal freedom.

Nobody will fail to notice that we are the lone dissenters in the decision of this case.  It is not the first time that we are occupying the position of a minority of one.  Almost one-fourth of a century ago we were a minority of one in proposing the adoption of Tagalog as our national language, of a system of national  defense, of an elective mayor for Manila, and other ideas  which later were concurred in by the majority of our people.  In this case we are just complying with our sworn duty to do what we  believe is right. We are adhering to our moral, legal and  political philosophy.  In this autumn of our life, it is too late to reverse the philosophy of a life-time.   We have been always of the opinion that consistency and deep-rooted  convictions are indispensable in public life.   It is one of the fundamental tenets of our political creed.

In  the matter of  unswerving loyalty to personal conviction, of unbreakable faith in high principles, of steadfast consistency of moral and patriotic conduct, this Supreme Court is  not lacking of an outstanding precedent to follow. Chief Justice Jose  Abad Santos, when  submitted  to the supreme test, unflinchingly  chose  death instead of a life preserved to help the machiavelic plans of the enemy.  He preferred eternal peace to an  unhappy conscience.  When the Japanese executioner announced that he will be killed soon,  because of his refusal to collaborate,  the judicial patriot antf martyr accepted his fate with socratic smile, in the true Bizal tradition.  With sublime serenity he consoled his tearful son by saying that to many, seeking it, is denied the glory of dying for the Fatherland.  He spoke with the wisdom  of a prophet who auscults the mysteries, of the future, and the future presented to our country, as a magnificent revelation, the gigantic  moral figure of  a new Malayan hero under the iridescent rainbow of immortality.

The episode  was so simple, so natural, so  unspectacular as that of a beautiful bird which, by the hunter's gun, falls dead from the  tree, abruptly  interrupted in  the full  glory of her singing.  But  its pathos  is worthy of a page in the masterly dialogues of Plato.  It is the mighty, climax of a brilliant long career in the service of his people.  It is the Grand Seal stamped at the end of a line of official opinions, where he wrote judicial thoughts for all time, for all generations to read  and ponder. Whenever a cruicial question is presented to us, where we need intellectual courage, we can always have a controlling precedent that will inspire and guide us, by looking back at the last decision of Justice Abad Santos, the one he wrote with all his blood  in the field of a southern island, in the middle  of towering columns and feathery palms of coconut groves, under the panoply of entrancing beauty of the Philippine sky.

Undeniably it would give a feeling of ease and relaxation if we could agree or enter into an equitable compromise with the majority.   To follow the line of least resistance is an innate human  tendency and predisposition,  In the absence of connecting ideas and opposing criteria, discussion could be avoided.  The exacting and exhausting clash of dialectics will be dispensed with.   Without stimulus, no straining nor bending of  mental  energy is  needed.   But when in the process of our scrutiny a question of principle is involved and the imperative  category of justice so demands, it is inevitable to renounce the natural satisfaction derived from thinking and feeling  in unison with our brethren.

It is our inescapable duty to do justice to the petitioner.

Justice  is the dominating thought in our Constitution. In the preamble it emphasizes the establishment of a regime of justice.  International law and social justice are among the first principles it advocates.  And it does not  allow the President of the Philippines to enter on the execution of his office without first solemnly swearing to "do justice to every  man." (Sec.  7, Art VII.)

We cannot violate with  impunity the irreversible mandates of our own conscience.  When her ire is provoked, there is no enemy more terrible.  It is  then to be dreaded more than the myrmidons  of the diabolical Nazi Gestapo, more than the hated ferocious Japanese  kempeis.  All other enemies can be destroyed,  but not conscience.  Once you defy her,  she will curse and persecute you relentlesslly, at day time  and at night time, whether  you are awake or asleep, implacable Nemesis that will not give you  rest until the end of your life.  So it is the best  policy to court and befriend her, by always yielding to her entreaties and following the path pointed by her unfailing finger.

Here is the case of a man deprived of his liberty without due process of law, without any legal process, and flagrantly denied the equal  protection of law.   By virtue of  specific precepts of our Constitution, by virtue of the law  of habeas corpus, by virtue of the cardinal principles of true justice, he is conclusively and absolutely entitled  to his immediate liberty.  He appeals to the protection of this  Supreme Court, where lies his last hope.  This Supreme Court, under the circumstances, is the only authority who has the power to offer the needed protection.  This Supreme Court has the imperative duty of affording the redress.  We believe that there is no force in the world that  can induce us to shirk  from that moral and legal  duty.  We make  this avowal of our definite and  irrevocable conviction, if in law and justice there still remains any substantial  meaning, and they are not a mere persiflage, deserving the  bantering wit of Aristophanes and Rabelais.

The pernicious effects of the denial of petitioner's prayer for personal freedom cannot be viewed but with grave concern by all liberal minded persons.   The reactionary spirit that that denial represents is evident.  It is a retrogression and complete reversal of the great movement started in the last century by Lopez Jaena, Del Pilar, Panjjaniban, Rizal the great political  leaders whom we worship as heroes because they fought for the civil liberties  of our people.  The backward  counter-current  against  the universal wave of liberalism that is sweeping all peoples of the world must be exposed.  We cannot avoid  but  to sound the alarm, lest our anachronistic  viewpoint might place us in the position of obstructionists in the progressive evolution towards a higher concept of human dignity.  From the denial of the petition, just one step more, and we are sanctioning involuntary servitude, in fact, human slavery.  Shall we need to disturb Lincoln in his eternal rest, to rehearse again in our country the whole drama of the American  Civil War of Emancipation?

Convinced that it is the only right thing to do, we vote for the issuance of an order for the immediate  release of the petitioner.