fail to keep their bargains." 38 In fact, non-performance of a contract was severely punished. Partnerships were formed and the respective obligations of the partners enforced. Thus, according to Loarca, "When two persons formed a partnership by putting in an equal share of the capital, and one of them went away to trade with the whole capital but was captured by their enemies, the partner who remained was bound to redeem his partner, by paying the price of the redemption. The captive was thus discharged not only from the responsibility for the capital of his partner but also for the money paid by the latter for his redemption. But if the partner who went away to trade, lost the money in gambling or women, he was compelled to pay the money thus misappropriated and his liability attached to his children. If the amount was so big that he was not able to refund it within the time agreed upon, then he and one-half of his children became the slaves of his partner, so that if he had two children, one of them became a slave. If afterwards, the free child was able to pay his father's debt, all of them were set free." 35

The penal law was the most extensive. Penalties were severe. According to the Penal Code of Calantiao, the penalties were death, incineration, mutilation of the fingers, slavery, flagellation, being bitten by ants, swimming for a fixed time, and other discretionary penalties. Father Plasencia writes, "They had laws by which they condemned to death a man of low birth who insulted the daughter or wife of a chief; likewise witches, and others.

33 Craig's edition of an "Unpublished translation, by Hon. W. W. Rockhill, of a Chinese book of 1349, by Wang Ta-yuan, Description of the Barbarians of the Isles (Tao-i-chih-lio).”

84 José María Pavon y Aranguru, Las Antiguas Leyendas de la Isla de Negros, 1838, recovered by Dr. James A. Robertson.

85 Relación de las Islas Filipinas, V Blair and Robertson, pp. 183,

of the same class. They condemned no one to slavery, unless he merited the death-penalty. As for the witches, they killed them, and their children and accomplices became slaves of the chief, after he had made some recompense to the injured person. All other offenses were punished by fines in gold, which if not paid with promptness, exposed the culprit to serve, until the payment should be made, the person aggrieved, to whom the money was to be paid. 36 Wide distinctions in punishment were made because of rank. Yet notwithstanding the seemingly cruel and illogical penalties, "The scale of penalties and the manner of their execution stand out in bold relief not only as against Greek and Roman laws but also as against prior and contemporaneous Spanish laws, and the proceedings adopted to determine the author of the theft, in case he was not known, compare favorably with the tortures to which the suspected persons were subjected under the Fuero Juzgo and the Partidas." 98 Not to mention the various punishable acts which likewise compare favorably with similar provisions even now,39 the weakest side of the penal system related to tolerance of crimes against chastity.10

88

36 Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair and Robertson, pp. 179, 180, 181.

87 Francisco Colin, S. J., Native Races and their Customs, 1663, XL Blair and Robertson, pp. 84-86.

38 Araneta, Penal Legislation of the Philippine Islands, III Philippine Law Review, Feb., 1914, pp. 175, 179.

39 See José María Pavon y Aranguru, Las Antiguas Leyendas de la Isla de Negros, 1838, recovered by Dr. James A. Robertson, and Romualdez, A Rough Survey of the Pre-Historic Legislation of the Philippines, I Philippine Law Journal, Nov., 1914, 149-180, for a minute description of the punishable acts.

40 Thus according to Father San Antonio, O. S. F., Crónicas, 1738, pp. 355-358, “Adultery was not punishable corporally, but the adulterer paid a certain sum to the aggrieved party; and that was sufficient so that the honor of the latter was restored and his anger re

§ 30. Judicial procedure.-The chief, assisted at times by old men of his barangay or by a neighboring chief, acted as judge in all cases of litigation between his subjects." He heard the witnesses and judged the case according to usage and law. When the litigants belonged to different barangays, or the controversy was between two chiefs and even at other times, arbiters were chosen, who gave judgment.

48

42

· Trials were public. "Investigations made and sentences passed by the dato must take place in the presence. of those of his barangay. Oaths were administered. The oath taken by the principales of Manila and Tondo in promising obedience to the Catholic Kings of Spain in 1571, was as follows: "May the sun divide us in halves, the alligators bite us, the women refuse us their favors and refuse to love us well, if we do not keep our word." Appeals were recognized."

moved. They paid no attention to concubinage, rape, and incest, unless the crime were committed by a timawa on a woman of rank. On the contrary, the committal of such sins openly was very common, for all of them were very much inclined to this excess; but I cannot find that they were addicted to the sin against nature in the olden time." But Father Ordóñez de Cevallos, Viajes del Mundo, 1614, p. 232, says: “The women are extremely very chaste, and lewdness is never seen in them, nor any disloyalty to their master; on the contrary, they are very generally virgins, and those who are married know not husband but one; and in spite of this, God, in His divine secrets, multiplies them greatly; and some towns are found to have two thousand five hundred inhabitants and to have over two thousand boys and girls, and yet none of these children is found to be illegitimate."

41 T. H. Pardo de Tavera, Census of the Philippine Islands, 1903, Vol. I, pp. 324, 325.

42 Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair and Robertson, pp. 173-176, 178, 179.

48 Plasencia, id.

44 Two Relations by Juan de Plasencia, O. S. F., 1589, VII Blair and Robertson, pp. 173-176, 178, 179. Morga states otherwise-"sen

The usual procedure is described by Father Colin as follows:

"For the determination of their suits, both civil and criminal, there was no other judge than the said chief, with the assistance of some old men of the same barangay. With them the suit was determined in the following form: They had the opponents summoned, and endeavored to have them come to an agreement. But if they would not agree, then an oath was administered to each one, to the effect that he would abide by what was determined to be done. Then they called for witnesses, and examined summarily. If the proof was equal (on both sides), the difference was split; but, if it were unequal, the sentence was given in favor of the one who conquered. If the one who was defeated resisted, the judge made himself a party to the cause, and all of them at once attacked with the armed band the one defeated, and execution to the required amount was levied upon him. The judge received the larger share of this amount, and some was paid to the witnesses of the one who won the suit, while the poor litigant received the least.

"In criminal causes there were wide distinctions made because of the rank of the murdered and the slain; and if the latter were a chief all his kinsmen went to hunt for the murderer and his relatives, and both sides engaged in war, until mediators undertook to declare the quantity of gold due for that murder, in accordance with the appraisals which the old men said ought to be paid according to their custom. One half of that amount belonged to the chiefs and the other half was divided among the wife, children, and relatives of the deceased." 45

tence was observed and executed without any further objection or delay." Rizal's edition, Sucesos de las Islas Filipinas, XVI Blair and Robertson, pp. 119-121.

45 Francisco Colin, S. J., Native Races and their Customs, 1663, XL Blair and Robertson, pp. 84-86.

The procedure in cases of theft is given by Father Colin as follows:

"In a matter of theft, if the crime were proved, but not the criminal, and more than one person was suspected, a canonical clearance from guilt had to be made in the following form. First, they obliged each person to put in a heap a bundle of cloth, leaves, or anything else that they wished, in which they might discover the article stolen. If the article stolen was found in the heap, at the end of this effort, then the suit ceased; if not, one of the three methods was tried. First, they were placed in the part of the river where it is deepest, each one with his wooden spear in his hand. Then at the same time they were all to be plunged under the water, for all are equal in this, and he who came out first was regarded as the criminal. Consequently, many let themselves drown for fear of punishment. The second was to place a stone in a vessel of boiling water, and to order them to take it out. He who refused to put his hand into the water paid the penalty for the theft. Thirdly, each one was given a wax candle of the same wick, and of equal size and weight. The candles were lighted at the same time and he whose candie first went out was the culprit.'

46

§ 31. Defects of organization are not hard to ascertain. "The weakest side of the culture of the early Filipinos was their political and social organization.

46 Francisco Colin, S. J., Native Races and their Customs, 1663, XL Blair and Robertson, pp. 84-86. See also Bowring, A Visit to the Philippines, pp. 123, 124. "Tradition has handed down to us similar methods, as that of masticating uncooked rice, which is still resorted to by the boys of Leyte in their games upon those suspected of having done a reprehensible act. The one who produced the thickest saliva was considered the guilty one for the reason that persons tormented with remorse can not usually produce much saliva." Romualdez, A Rough Survey of the Pre-Historic Legislation of the Philippines, I Philippine Law Journal, Nov., 1914, p. 178.