[ G.R. No. 5487, February 11, 1911 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JUAN PICO, DEFENDANT AND APPELLANT.
D E C I S I O N
CARSON, J.:
This is a motion to dismiss the information filed in this case and all the proceedings based thereon, including the modified sentence of seventeen years four months and one day of cadena temporal together with the accessory penalties
prescribed by law which was imposed upon the defendant and appellant by this court upon his conviction of the crime of asesinato (assassination, murder in the first degree).
The ground on which this motion is based is the alleged repugnancy of the penalty thus imposed, as also of the penalty prescribed by the Penal Code for the crime of which the defendant was convicted, to that provision of the Philippine Bill of Rights which forbids the infliction of cruel and unusual punishments.
In support of this contention counsel for defendant cites and relies upon the case of Weems vs. United States, [1] decided in the Supreme Court of the United States May 2,1910, In that case the court held that the penalty of cadena temporal, which is prescribed by the Philippine Penal Code for the crime of falsification of a public document by a public official, is a cruel and unusual punishment forbidden by the Philippine Bill of Rights; and counsel insists that the ratio decidendi leads inevitably to the conclusion that the penalties of cadena temporal and cadena perpetua, as defined and prescribed by the code, are essentially and inherently cruel and unusual punishments, the infliction of either of which as a penalty for any crime, whatever its nature may be, is prohibited by the Philippine Bill of Rights.
There are at present several applications for writs of habeas corpus awaiting the final resolution of this court, wherein the petitioners, now serving sentences upon conviction of one or another of the various offenses for which these penalties are prescribed by the code, seek to obtain their discharge on similar grounds to those on which this motion is based; and we are informed that in the event of a holding by this court favorable to the contention of counsel in this case, all of those now serving such sentences will demand their discharge. Some of the crimes, other than the falsification of public documents by a public official, for which the penalties of cadena perpetua and cadena temporal are prescribed by the code are: treason; piracy; parricide; assassination ; counterfeiting money; giving false testimony against an accused person, if such person should have been sentenced to death or cadena perpetua and such sentence should be executed; arson, where human life is knowingly endangered; unlawful detention, with refusal to disclose the whereabouts of the prisoner or to prove that he has been set at liberty; and robbery with homicide or grave personal injury. The last official report of the Director of Prisons of the Philippine Islands which is before us discloses that there were at the date of that report serving sentences of cadena temporal or cadena perpetua in the various penal institutions in these Islands, 256 persons convicted of assassination; 57 persons convicted of parricide; 160 persons convicted of robbery with homicide, rape, or other grave personal injuries; 4 persons convicted of arson where human life was knowingly endangered; 4 persons convicted of abduction; and 4 persons convicted of kidnaping. Since "an unconstitutional law is void and is no law, an offense created by it is no crime," and "a conviction under it is not merely erroneous but is illegal and void and can not be a legal cause of imprisonment," (Ex parte Siebold, 100 U. S., 371), it will readily be seen that a holding by this court that the decision in the Weems case involves a declaration that the various provisions of the Penal Code prescribing either the penalty of cadena perpetua or that of cadena temporal are repugnant to the Philippine Bill of Rights, and that this court is bound thereby, would result in a general jail delivery of all those heretofore convicted of many of the gravest and most heinous offenses defined and penalized by law; and would be substantially equivalent to a proclamation of amnesty in favor of all those who have heretofore committed such crimes and have not yet been brought to trial, or who may commit them hereafter until such time as the Legislature may be able to reform the Penal Code.
Confronted as we are with the knowledge that consequences so far reaching and disastrous must result from a holding favorable to the contention of counsel on this motion, it is manifestly our duty rigidly to restrict the application of the doctrine laid down in the Weems case to cases wherein the ratio decidendi in that case is clearly applicable and to decline to be bound by inferences drawn from observations and comments contained in the opinion in that case which appear to be based upon a misapprehension of facts, or upon assumed facts which do not accord with the facts in the cases brought before us.
We may dismiss without much discussion any suggestion that under the doctrine laid down in the Weems case penalties involving imprisonment with or without hard labor, for life, or for a long period of years followed by surveillance of the discharged convict for life, are essentially and inherently cruel and unusual punishments without regard to the crime for which such penalties are prescribed. As we understand the opinion in the Weems case it rests upon the conclusion that the penalty prescribed and imposed in that case was a cruel and unusual one, principally and more especially on the proposition that by relation to the crime of which the defendant was convicted (that is to say the falsification of a public document by a public official) imprisonment for not less than twelve years, followed by surveillance by the authorities of the discharged convict for life, is a penalty so excessive as to justify and require a judicial declaration that the law prescribing it is repugnant to the Philippine Bill of Rights. But there is nothing in the decision in that case which would justify the inference that the court was of opinion that imprisonment, with or without hard labor, for life or for a long term of years followed by the life surveillance of the discharged convict, is to be regarded as a cruel and unusual punishment when prescribed for such crimes as treason, parricide, assassination, and other heinous offenses, or even for less grave offenses when these are marked by attendant circumstances which, in the sound discretion of the legislature, justify and necessitate the imposition of extraordinarily harsh penalties to secure their repression. On the contrary, the opinion of the court clearly recognizes the legislative power to prescribe such penalties and even the death penalty in proper cases, and disclaims any intention to express anything which would deny the "wide range" of power that the legislature possesses to adapt its penal laws to conditions as they exist, and punish the crimes of men according to their forms and frequency.
But counsel's main contention as to the invalidity of the code penalties of cadena perpetua and cadena temporal is based on inferences drawn from comments of the court in the opinion in the Weems case upon the provisions of the Philippine Penal Code which prescribe that convicts sentenced to either of these penalties will be employed at hard and laborious work or tasks ("se emplearan en trabajos duros y penosos" and shall always carry a chain at the ankle, hanging from the waist), ("llevaran siempre una cadena al pie, pendiente de la cintura"). We think, however, that admitting that the comments of the court would justify the inference that it was of opinion that these provisions of the code, as construed by the court, prescribe conditions which would render any penalty affected thereby a cruel and unusual punishment, we must, nevertheless, decline to hold ourselves bound by the further inference, not expressly drawn by the court itself, that the penalties of cadena perpetua and cadena temporal, as prescribed by existing law in these Islands, are inherently and essentially cruel and unusual punishments:
First. Because the court in its opinion expressly admitted that it was not fully advised as to the true meaning and effect of these provisions of the Spanish Penal Code, and we are satisfied that, in this regard, it labored under a misapprehension of fact as to certain matters not essential to the decision of the Weems case, but of vital importance in any general discussion of the inherent and essential characteristics of the code penalties of cadena perpetua and cadena temporal. In the course of the opinion the writer says: "It may be that even the cruelty of pain is not omitted. He must bear a chain night and day. He is condemned to painful as well as hard labor. What painful labor must mean we have no exact measure. It must be something more than hard labor. It may be hard labor pressed to the point of pain." But the Spanish original is not accurately or correctly rendered by the words "hard and painful labor." On this point the court was doubtless led into error by the inaccurate and erroneous rendering of the original Spanish in the English translation of the Philippine Penal Code printed at the Government Printing Office at Washington, in June, 1900, for the Division of Customs and Insular Affairs. In this translation the words "se emplearan en trabajos duros y penosos" were rendered as follows: "They shall be employed in hard and painful labor." In this connection, however, the English word "painful" is not synonymous with the Spanish word "penoso." The more usual and important meaning of the Spanish word "penoso," as given by both the "Diccionario de la Lengua Castellana por La Real Academia Espafiola" and the "Diccionario Enciclopedico de la Lengua Casteliana," is "trabajoso," "que causa pena o cuesta gran dificultad," (laborious, that which causes hardship or involves great difficulty). While the word pena, from which the adjective is derived, is broad enough to include every form of disagreeable sensation, physical as well as mental or spiritual, and thus in some connections it may properly be said to connote either physical or mental pain or distress (dolor or pesar), in ordinary use it serves as a synonym for the word "dificultad" (difficulty or hardship) as in the illustrative phrase given by both the above-mentioned dictionaries, "Con mucha pena he terminado este negocio." (With much difficulty I have terminated this business or undertaking.) If the idea of actual suffering or pain, either physical or mental, is uppermost in the mind of a writer in Spanish he would tend to the use of the more specific words dolor or pesar, the tendency in the use of the word pena being to express the idea of difficulty or hardship in the broader signification of these words, without emphasizing or even conveying the idea of actual mental suffering or physical pain. A literal rendering into English of the Spanish text would be as follows: "They shall be employed in hard and laborious labor," or "They shall be employed in hard and laborious tasks." A more liberal rendering, which perhaps conveys the meaning more accurately, would be as follows: "They shall be employed at the hardest class of labor." The use of the adjectives "duros" and "penosos" qualifying the same word has an intensive effect and marks a distinction between the hardest class of labor which may be required of prisoners convicted of the gravest crimes in the contemplation of the Spanish legislator and the relatively lighter tasks prescribed for less grave offenders. The words "duros" and "penosos," as used in this connection, carry with them no suggestion of physical or mental pain beyond that which is necessarily involved in the performance of enforced hard and laborious tasks by convicts. That this was the construction placed on the language of the code by the Spanish prison authorities prior to the American occupation, and that it is the construction adopted by the executive authorities under the present sovereignty, may be fairly inferred from the general provisions of the prison regulations in force under both administrations and the uniform practice in the penitentiaries in these Islands.
The court above also seems to have been of opinion that "the cruelty of pain" is involved in the provisions of the code prescribing that those sentenced to cadena "shall always carry a chain at the ankle, hanging from the waist." But it must be apparent that while the carrying of a chain in this manner may and undoubtedly does add to the ignominy and degradation of the principal penalty, the question of its painfulness, physical painfulness, must depend on the kind of chain used for this purpose. While the use of chains has fallen into disuse under the American occupation of these Islands, most of the members of this court have seen and handled chains such as were formerly in use in the Spanish prisons, and we do not think that the carrying of a chain of the size and weight and shape of those formerly employed necessarily resulted in the infliction of physical pain. The code did not prescribe the kind of chain to be used, but certainly it could not have been intended that the shape or size or weight of the chain should be such as to impede materially the movements of a convict engaged in hard labor beyond the jail limits. The code confers no express authority to inflict physical pain as a necessary part of the penalty of cadena, and under the system of judicial supervision of the penal institutions which existed prior to the American occupation of these Islands, a convict upon whom a thoughtless or brutal jailer placed chains capable of inflicting physical pain, would undoubtedly have been entitled to prompt and speedy relief.
The cruelty of pain - physical pain - not being necessarily involved in the application of these provisions of the code, it is quite clear that the requirement as to hard labor does not render the code penalties of cadena inherently and essentially cruel and unusual punishment; and perhaps the same may be said as to the provisions for the carrying of chains by convicts sentenced to cadena, since the use of chains, at least as a measure of security, is not unknown in the United States. As to this latter proposition, however, we deem it unnecessary to make an express ruling in view of the fact that, as will hereafter be shown, the requirement as to the carrying of chains by these convicts has long since fallen into disuse, and become obsolete.
Second. Because the carrying of chains by convicts sentenced to cadena has long fallen into disuse, and in fact no such punishment has been inflicted since the earliest days of the military occupation of the Philippines by American troops.
We are not definitely informed, nor have we been able to ascertain through official reports or other similar channels open to our investigation, in what manner or by virtue of what authority the penitentiary officials originally adopted the practice of neglecting or declining to comply with the code provisions in this regard. But since the practice originated while these penitentiaries were administered by the military authorities, through officers of the army of occupation duly detailed for that purpose, it may reasonably and fairly be presumed that these officers were duly authorized by the orders under which they were acting thus to disregard the provisions of municipal law which were continued in force in these Islands by the commander of the American forces in his "military proclamation" dated Headquarters, Department of the Pacific, August 14, 1898. Manifestly, no lawful order so to do could at that time have emanated from any other source than the commander of the forces of military occupation who issued that proclamation, his successors in authority or superior authority. An order from the commander of the forces of military occupation directing those charged with the execution of sentences of cadena to disregard the provisions of municipal law as to the carrying of chains by prisoners under their charge, had the effect, by necessary implication, of abrogating these provisions or, at least, of suspending them until such order should be lawfully rescinded. No such rescinding order appears to have been issued, and the issuance of such an order has, of course, been prohibited since the time when the constitutional guaranty was extended to these Islands, if we assume that a requirement as to the carrying of chains by convicts sentenced to cadena would be in violation of the prohibition against the infliction of cruel and unusual punishments. It seems clear, therefore, that those provisions of the Penal Code prescribing the carrying of chains are not in force at this time and can not in any way affect the validity of the principal penalty of which they at one time formed a part. We think that there can be no doubt that the officer vested with supreme command during the military occupation of these Islands, with authority to issue the above-mentioned proclamation, had authority to issue such prison regulations as he might deem proper; that his order establishing such regulations had all the force of law; and that in so far as such regulations might conflict with any law theretofore in force, these regulations, as the last expression of the will of the military commander, abrogated the conflicting provisions of the prior law continued in force by virtue of his military proclamation. The chief difficulty which has confronted us in arriving at our conclusion is the fact that we have been unable to find any record of the promulgation of an order directing the discontinuance of the use of chains in the penal institutions of the Islands, although we have been furnished with copies of all the published orders of the various officers in command of the American forces throughout the period of military occupation. But the preservation of the original order, or of written or printed copies of the original order is not vital. As we understand it, the legality, force, and efficacy of the orders of the military commander did not depend on the form in which they were couched; and doubtless an oral order, formally issued and so promulgated as to charge those affected thereby with knowledge of its existence was not less binding upon them and all others concerned than an order in writing would have been. The vital question is whether such order was in fact issued, and under all the circumstances we think that we are justified in concluding that it was.
But however this may have been, we do not think that an obsolete provision of the Spanish Penal Code which is not now enforced and has not been enforced since the Islands were brought under the present sovereignty; which was not enforced at the time when the constitutional guaranty against the infliction of cruel and unusual punishments was inserted in the Philippine Bill of Rights; and which there is no lawful authority to require the prison officials to put in force in the future, if the enforcement be held to involve the infliction of a cruel and unusual punishment, should at this late day be given such vital force as to invalidate many of the most important provisions of existing law, and thus impose upon this court the duty of setting at liberty in this community hundreds of the vilest criminals and of proclaiming the immunity of all those who have heretofore been guilty of many of the gravest and most heinous offenses known to the law.
We understand that not only has the use of chains been abandoned since the earliest days of the occupation of these Islands by the military forces of the United States, but that, since that time, the treatment of convicts sentenced to cadena has not been differentiated by the executive and prison authorities from that of the ordinary convict sentenced to hard labor for a term of years; so that since that time the provisions of the Penal Code prescribing specially harsh conditions and accessory penalties annexed to the principal penalty of imprisonment imposed upon such convicts, have fallen into disuse so far as their enforcement depends upon these authorities. It would seem, therefore, that just as the provision for the use of chains must be deemed to have been abrogated or at least to have become obsolete and unenforceable, so also must all of the provisions of the Penal Code prescribing special conditions and accessory penalties annexed to the principal penalties of cadena be held to be abrogated or at least to have become obsolete and unenforceable, in so far as they impose upon the executive or prison authorities a duty to treat convicts sentenced to cadena differently from ordinary convicts sentenced to hard labor for a term of years. We do not deem it necessary, however, to pass upon this proposition at this time, partly because our knowledge of the facts does not permit us to lay down the statement of fact upon which it rests with the same degree of certainty as we are enabled through official reports to say that the use of chains has become obsolete; and partly because, for the purposes of a decision on this motion, we do not think a ruling in this regard is necessary. The penalty of cadena temporal, even if it be granted that all the code provisions relating thereto are still in force, when imposed upon a convict of the crime of asesinato, would not, in our opinion, be a cruel or unusual punishment, unless it is rendered so by the single provision touching the carrying of chains, and as we have shown, this provision has undoubtedly been abrogated or, at least, has long since become obsolete and unenforceable.
Nothing which has been said should be understood as an attempt on our part to set up and maintain our opinion against the opinion of that great tribunal which rendered the decision in the Weems case, We accept, as we should accept, the doctrines and principles laid down in that case as of imperative and controlling authority in this jurisdiction, and shall unhesitatingly apply these doctrines and principles in all cases involving the application of the code provisions prescribing the penalty of cadena for offenses similar in nature to that for which Weems was convicted. As we understand the reasoning of the opinion in the Weems case, it imperatively declares that a law prescribing the code penalty of cadena for an offense as to which there is nothing "to give character and degree" other than the seeking of felonious gain is invalid, because it prescribes a penalty so excessive as to justify a judicial declaration that it is a cruel and unusual punishment; and we are satisfied, from the reasoning of the opinion, that the court would have arrived at the same conclusion even if it had been made to appear to it that "the cruelty of pain" is not necessarily involved in the provisions touching enforced labor and the wearing of chains or that the treatment to which convicts sentenced to cadena may be subjected in no wise differs from that to which prisoners sentenced to imprisonment for a term of years with hard labor are subjected. The motion is, therefore, denied.
Arellano, C. J., Mapa, Moreland, and Trent, JJ., concur.
[1] 217 U. S., 349.
The ground on which this motion is based is the alleged repugnancy of the penalty thus imposed, as also of the penalty prescribed by the Penal Code for the crime of which the defendant was convicted, to that provision of the Philippine Bill of Rights which forbids the infliction of cruel and unusual punishments.
In support of this contention counsel for defendant cites and relies upon the case of Weems vs. United States, [1] decided in the Supreme Court of the United States May 2,1910, In that case the court held that the penalty of cadena temporal, which is prescribed by the Philippine Penal Code for the crime of falsification of a public document by a public official, is a cruel and unusual punishment forbidden by the Philippine Bill of Rights; and counsel insists that the ratio decidendi leads inevitably to the conclusion that the penalties of cadena temporal and cadena perpetua, as defined and prescribed by the code, are essentially and inherently cruel and unusual punishments, the infliction of either of which as a penalty for any crime, whatever its nature may be, is prohibited by the Philippine Bill of Rights.
There are at present several applications for writs of habeas corpus awaiting the final resolution of this court, wherein the petitioners, now serving sentences upon conviction of one or another of the various offenses for which these penalties are prescribed by the code, seek to obtain their discharge on similar grounds to those on which this motion is based; and we are informed that in the event of a holding by this court favorable to the contention of counsel in this case, all of those now serving such sentences will demand their discharge. Some of the crimes, other than the falsification of public documents by a public official, for which the penalties of cadena perpetua and cadena temporal are prescribed by the code are: treason; piracy; parricide; assassination ; counterfeiting money; giving false testimony against an accused person, if such person should have been sentenced to death or cadena perpetua and such sentence should be executed; arson, where human life is knowingly endangered; unlawful detention, with refusal to disclose the whereabouts of the prisoner or to prove that he has been set at liberty; and robbery with homicide or grave personal injury. The last official report of the Director of Prisons of the Philippine Islands which is before us discloses that there were at the date of that report serving sentences of cadena temporal or cadena perpetua in the various penal institutions in these Islands, 256 persons convicted of assassination; 57 persons convicted of parricide; 160 persons convicted of robbery with homicide, rape, or other grave personal injuries; 4 persons convicted of arson where human life was knowingly endangered; 4 persons convicted of abduction; and 4 persons convicted of kidnaping. Since "an unconstitutional law is void and is no law, an offense created by it is no crime," and "a conviction under it is not merely erroneous but is illegal and void and can not be a legal cause of imprisonment," (Ex parte Siebold, 100 U. S., 371), it will readily be seen that a holding by this court that the decision in the Weems case involves a declaration that the various provisions of the Penal Code prescribing either the penalty of cadena perpetua or that of cadena temporal are repugnant to the Philippine Bill of Rights, and that this court is bound thereby, would result in a general jail delivery of all those heretofore convicted of many of the gravest and most heinous offenses defined and penalized by law; and would be substantially equivalent to a proclamation of amnesty in favor of all those who have heretofore committed such crimes and have not yet been brought to trial, or who may commit them hereafter until such time as the Legislature may be able to reform the Penal Code.
Confronted as we are with the knowledge that consequences so far reaching and disastrous must result from a holding favorable to the contention of counsel on this motion, it is manifestly our duty rigidly to restrict the application of the doctrine laid down in the Weems case to cases wherein the ratio decidendi in that case is clearly applicable and to decline to be bound by inferences drawn from observations and comments contained in the opinion in that case which appear to be based upon a misapprehension of facts, or upon assumed facts which do not accord with the facts in the cases brought before us.
We may dismiss without much discussion any suggestion that under the doctrine laid down in the Weems case penalties involving imprisonment with or without hard labor, for life, or for a long period of years followed by surveillance of the discharged convict for life, are essentially and inherently cruel and unusual punishments without regard to the crime for which such penalties are prescribed. As we understand the opinion in the Weems case it rests upon the conclusion that the penalty prescribed and imposed in that case was a cruel and unusual one, principally and more especially on the proposition that by relation to the crime of which the defendant was convicted (that is to say the falsification of a public document by a public official) imprisonment for not less than twelve years, followed by surveillance by the authorities of the discharged convict for life, is a penalty so excessive as to justify and require a judicial declaration that the law prescribing it is repugnant to the Philippine Bill of Rights. But there is nothing in the decision in that case which would justify the inference that the court was of opinion that imprisonment, with or without hard labor, for life or for a long term of years followed by the life surveillance of the discharged convict, is to be regarded as a cruel and unusual punishment when prescribed for such crimes as treason, parricide, assassination, and other heinous offenses, or even for less grave offenses when these are marked by attendant circumstances which, in the sound discretion of the legislature, justify and necessitate the imposition of extraordinarily harsh penalties to secure their repression. On the contrary, the opinion of the court clearly recognizes the legislative power to prescribe such penalties and even the death penalty in proper cases, and disclaims any intention to express anything which would deny the "wide range" of power that the legislature possesses to adapt its penal laws to conditions as they exist, and punish the crimes of men according to their forms and frequency.
But counsel's main contention as to the invalidity of the code penalties of cadena perpetua and cadena temporal is based on inferences drawn from comments of the court in the opinion in the Weems case upon the provisions of the Philippine Penal Code which prescribe that convicts sentenced to either of these penalties will be employed at hard and laborious work or tasks ("se emplearan en trabajos duros y penosos" and shall always carry a chain at the ankle, hanging from the waist), ("llevaran siempre una cadena al pie, pendiente de la cintura"). We think, however, that admitting that the comments of the court would justify the inference that it was of opinion that these provisions of the code, as construed by the court, prescribe conditions which would render any penalty affected thereby a cruel and unusual punishment, we must, nevertheless, decline to hold ourselves bound by the further inference, not expressly drawn by the court itself, that the penalties of cadena perpetua and cadena temporal, as prescribed by existing law in these Islands, are inherently and essentially cruel and unusual punishments:
First. Because the court in its opinion expressly admitted that it was not fully advised as to the true meaning and effect of these provisions of the Spanish Penal Code, and we are satisfied that, in this regard, it labored under a misapprehension of fact as to certain matters not essential to the decision of the Weems case, but of vital importance in any general discussion of the inherent and essential characteristics of the code penalties of cadena perpetua and cadena temporal. In the course of the opinion the writer says: "It may be that even the cruelty of pain is not omitted. He must bear a chain night and day. He is condemned to painful as well as hard labor. What painful labor must mean we have no exact measure. It must be something more than hard labor. It may be hard labor pressed to the point of pain." But the Spanish original is not accurately or correctly rendered by the words "hard and painful labor." On this point the court was doubtless led into error by the inaccurate and erroneous rendering of the original Spanish in the English translation of the Philippine Penal Code printed at the Government Printing Office at Washington, in June, 1900, for the Division of Customs and Insular Affairs. In this translation the words "se emplearan en trabajos duros y penosos" were rendered as follows: "They shall be employed in hard and painful labor." In this connection, however, the English word "painful" is not synonymous with the Spanish word "penoso." The more usual and important meaning of the Spanish word "penoso," as given by both the "Diccionario de la Lengua Castellana por La Real Academia Espafiola" and the "Diccionario Enciclopedico de la Lengua Casteliana," is "trabajoso," "que causa pena o cuesta gran dificultad," (laborious, that which causes hardship or involves great difficulty). While the word pena, from which the adjective is derived, is broad enough to include every form of disagreeable sensation, physical as well as mental or spiritual, and thus in some connections it may properly be said to connote either physical or mental pain or distress (dolor or pesar), in ordinary use it serves as a synonym for the word "dificultad" (difficulty or hardship) as in the illustrative phrase given by both the above-mentioned dictionaries, "Con mucha pena he terminado este negocio." (With much difficulty I have terminated this business or undertaking.) If the idea of actual suffering or pain, either physical or mental, is uppermost in the mind of a writer in Spanish he would tend to the use of the more specific words dolor or pesar, the tendency in the use of the word pena being to express the idea of difficulty or hardship in the broader signification of these words, without emphasizing or even conveying the idea of actual mental suffering or physical pain. A literal rendering into English of the Spanish text would be as follows: "They shall be employed in hard and laborious labor," or "They shall be employed in hard and laborious tasks." A more liberal rendering, which perhaps conveys the meaning more accurately, would be as follows: "They shall be employed at the hardest class of labor." The use of the adjectives "duros" and "penosos" qualifying the same word has an intensive effect and marks a distinction between the hardest class of labor which may be required of prisoners convicted of the gravest crimes in the contemplation of the Spanish legislator and the relatively lighter tasks prescribed for less grave offenders. The words "duros" and "penosos," as used in this connection, carry with them no suggestion of physical or mental pain beyond that which is necessarily involved in the performance of enforced hard and laborious tasks by convicts. That this was the construction placed on the language of the code by the Spanish prison authorities prior to the American occupation, and that it is the construction adopted by the executive authorities under the present sovereignty, may be fairly inferred from the general provisions of the prison regulations in force under both administrations and the uniform practice in the penitentiaries in these Islands.
The court above also seems to have been of opinion that "the cruelty of pain" is involved in the provisions of the code prescribing that those sentenced to cadena "shall always carry a chain at the ankle, hanging from the waist." But it must be apparent that while the carrying of a chain in this manner may and undoubtedly does add to the ignominy and degradation of the principal penalty, the question of its painfulness, physical painfulness, must depend on the kind of chain used for this purpose. While the use of chains has fallen into disuse under the American occupation of these Islands, most of the members of this court have seen and handled chains such as were formerly in use in the Spanish prisons, and we do not think that the carrying of a chain of the size and weight and shape of those formerly employed necessarily resulted in the infliction of physical pain. The code did not prescribe the kind of chain to be used, but certainly it could not have been intended that the shape or size or weight of the chain should be such as to impede materially the movements of a convict engaged in hard labor beyond the jail limits. The code confers no express authority to inflict physical pain as a necessary part of the penalty of cadena, and under the system of judicial supervision of the penal institutions which existed prior to the American occupation of these Islands, a convict upon whom a thoughtless or brutal jailer placed chains capable of inflicting physical pain, would undoubtedly have been entitled to prompt and speedy relief.
The cruelty of pain - physical pain - not being necessarily involved in the application of these provisions of the code, it is quite clear that the requirement as to hard labor does not render the code penalties of cadena inherently and essentially cruel and unusual punishment; and perhaps the same may be said as to the provisions for the carrying of chains by convicts sentenced to cadena, since the use of chains, at least as a measure of security, is not unknown in the United States. As to this latter proposition, however, we deem it unnecessary to make an express ruling in view of the fact that, as will hereafter be shown, the requirement as to the carrying of chains by these convicts has long since fallen into disuse, and become obsolete.
Second. Because the carrying of chains by convicts sentenced to cadena has long fallen into disuse, and in fact no such punishment has been inflicted since the earliest days of the military occupation of the Philippines by American troops.
We are not definitely informed, nor have we been able to ascertain through official reports or other similar channels open to our investigation, in what manner or by virtue of what authority the penitentiary officials originally adopted the practice of neglecting or declining to comply with the code provisions in this regard. But since the practice originated while these penitentiaries were administered by the military authorities, through officers of the army of occupation duly detailed for that purpose, it may reasonably and fairly be presumed that these officers were duly authorized by the orders under which they were acting thus to disregard the provisions of municipal law which were continued in force in these Islands by the commander of the American forces in his "military proclamation" dated Headquarters, Department of the Pacific, August 14, 1898. Manifestly, no lawful order so to do could at that time have emanated from any other source than the commander of the forces of military occupation who issued that proclamation, his successors in authority or superior authority. An order from the commander of the forces of military occupation directing those charged with the execution of sentences of cadena to disregard the provisions of municipal law as to the carrying of chains by prisoners under their charge, had the effect, by necessary implication, of abrogating these provisions or, at least, of suspending them until such order should be lawfully rescinded. No such rescinding order appears to have been issued, and the issuance of such an order has, of course, been prohibited since the time when the constitutional guaranty was extended to these Islands, if we assume that a requirement as to the carrying of chains by convicts sentenced to cadena would be in violation of the prohibition against the infliction of cruel and unusual punishments. It seems clear, therefore, that those provisions of the Penal Code prescribing the carrying of chains are not in force at this time and can not in any way affect the validity of the principal penalty of which they at one time formed a part. We think that there can be no doubt that the officer vested with supreme command during the military occupation of these Islands, with authority to issue the above-mentioned proclamation, had authority to issue such prison regulations as he might deem proper; that his order establishing such regulations had all the force of law; and that in so far as such regulations might conflict with any law theretofore in force, these regulations, as the last expression of the will of the military commander, abrogated the conflicting provisions of the prior law continued in force by virtue of his military proclamation. The chief difficulty which has confronted us in arriving at our conclusion is the fact that we have been unable to find any record of the promulgation of an order directing the discontinuance of the use of chains in the penal institutions of the Islands, although we have been furnished with copies of all the published orders of the various officers in command of the American forces throughout the period of military occupation. But the preservation of the original order, or of written or printed copies of the original order is not vital. As we understand it, the legality, force, and efficacy of the orders of the military commander did not depend on the form in which they were couched; and doubtless an oral order, formally issued and so promulgated as to charge those affected thereby with knowledge of its existence was not less binding upon them and all others concerned than an order in writing would have been. The vital question is whether such order was in fact issued, and under all the circumstances we think that we are justified in concluding that it was.
But however this may have been, we do not think that an obsolete provision of the Spanish Penal Code which is not now enforced and has not been enforced since the Islands were brought under the present sovereignty; which was not enforced at the time when the constitutional guaranty against the infliction of cruel and unusual punishments was inserted in the Philippine Bill of Rights; and which there is no lawful authority to require the prison officials to put in force in the future, if the enforcement be held to involve the infliction of a cruel and unusual punishment, should at this late day be given such vital force as to invalidate many of the most important provisions of existing law, and thus impose upon this court the duty of setting at liberty in this community hundreds of the vilest criminals and of proclaiming the immunity of all those who have heretofore been guilty of many of the gravest and most heinous offenses known to the law.
We understand that not only has the use of chains been abandoned since the earliest days of the occupation of these Islands by the military forces of the United States, but that, since that time, the treatment of convicts sentenced to cadena has not been differentiated by the executive and prison authorities from that of the ordinary convict sentenced to hard labor for a term of years; so that since that time the provisions of the Penal Code prescribing specially harsh conditions and accessory penalties annexed to the principal penalty of imprisonment imposed upon such convicts, have fallen into disuse so far as their enforcement depends upon these authorities. It would seem, therefore, that just as the provision for the use of chains must be deemed to have been abrogated or at least to have become obsolete and unenforceable, so also must all of the provisions of the Penal Code prescribing special conditions and accessory penalties annexed to the principal penalties of cadena be held to be abrogated or at least to have become obsolete and unenforceable, in so far as they impose upon the executive or prison authorities a duty to treat convicts sentenced to cadena differently from ordinary convicts sentenced to hard labor for a term of years. We do not deem it necessary, however, to pass upon this proposition at this time, partly because our knowledge of the facts does not permit us to lay down the statement of fact upon which it rests with the same degree of certainty as we are enabled through official reports to say that the use of chains has become obsolete; and partly because, for the purposes of a decision on this motion, we do not think a ruling in this regard is necessary. The penalty of cadena temporal, even if it be granted that all the code provisions relating thereto are still in force, when imposed upon a convict of the crime of asesinato, would not, in our opinion, be a cruel or unusual punishment, unless it is rendered so by the single provision touching the carrying of chains, and as we have shown, this provision has undoubtedly been abrogated or, at least, has long since become obsolete and unenforceable.
Nothing which has been said should be understood as an attempt on our part to set up and maintain our opinion against the opinion of that great tribunal which rendered the decision in the Weems case, We accept, as we should accept, the doctrines and principles laid down in that case as of imperative and controlling authority in this jurisdiction, and shall unhesitatingly apply these doctrines and principles in all cases involving the application of the code provisions prescribing the penalty of cadena for offenses similar in nature to that for which Weems was convicted. As we understand the reasoning of the opinion in the Weems case, it imperatively declares that a law prescribing the code penalty of cadena for an offense as to which there is nothing "to give character and degree" other than the seeking of felonious gain is invalid, because it prescribes a penalty so excessive as to justify a judicial declaration that it is a cruel and unusual punishment; and we are satisfied, from the reasoning of the opinion, that the court would have arrived at the same conclusion even if it had been made to appear to it that "the cruelty of pain" is not necessarily involved in the provisions touching enforced labor and the wearing of chains or that the treatment to which convicts sentenced to cadena may be subjected in no wise differs from that to which prisoners sentenced to imprisonment for a term of years with hard labor are subjected. The motion is, therefore, denied.
Arellano, C. J., Mapa, Moreland, and Trent, JJ., concur.
[1] 217 U. S., 349.