CIVIL LAW UNDER THE AMERICAN FLAGBy JORGE BOCOBO,

AssUtant Professor of Civil Law, UniverBit1lof the Pkilippinu.

The British Empire and the Ameriean Republic have, in the courseof their territorial expansi<»n,impressed their political institutions onmany peoples but have left the Roman civil law intact wherever theyfound it deeply rooted. Thus, Quebec, Canada; which was transferredin 1763 by France to England, has preserved its private law basedon the laws, edicts and ordinances of France and· the Custom of Paris,and its Civil Code, made effective in 1866, has adopted the spirit andframework of the French Code. As a result of the Boer War, the twoDutch Republics of Orange and Transvaal were annexed to. the Empireof Great Britain, and by an Act of Parliament in 1909, these two ter-ritories, together with Natal and Cape colonies, were merged in alatiV~ Union. The private law of this great commonwealth restsDutch civil law, which is of .Roman origin,(l) although aboutof the white population are British. Even Scotland, which lies at the verydoor of England and is so closely bound up with English civilization anddestiny, has permanently adhered to the Roman law. Ceylon, Mauritius,and British Guiana have done the same. As for American territories,it is well-known that the State of Louisiana has retained her civil law.Porto Rico and the Philippines likewise continue to be governed by thatjurisprudence which prevails in almost all the civilized countries of theworld.

The purpose of this article is to trace in a cursory manner thedevelopment of law in Louisiana and certain other States, as well as theAmerican territories above mentioned. An attempt will be made to showcertain common tendencies in the unfolding of the law in these regions,

.wh~chmay be assigned to the contact between Anglo-Saxon and Latincivilizations.

The history of the Mississippi Valley before the United States hadobtained a firm and lasting foothold thereon, was a long-drawn strugglebetween Latin and Anglo-Saxon civilizations. France, Spain, England.

'BRd,la.t&1'01'1, the UnitefiS't&tes., were the mighty aetots in thia ~1drama, 1Vhlcb teems with iSplenID.de%amplesof energy and h'eroitb. ftft\is BOW the State of Louiaiana, which lay at the mouth of the. great river,was necessarily an important battleground of the slow but tremelldollll'COnflict.

From the very fil'St stages of such strife for mastery, Spain "a'8eliminated, for the explorlltions of De Leon, PAninode Narvaez, and othersmet failure after· failure. Thus, Fingland and France were left alone tofight out every inch of ground. The early expeditions of Cabot furnishedEngland with a color of title to the great northern continent, but those ofCartier and Champlain gave l''ranee ground for claiming the same tem •.tory. While the French held Canada and pierced far into the unknownwilds of the interior up· the St. Lawrence and down the MississippiValley, the English colonies seemed to .have been satisfied with the Atlan-tic seaboard. There was a marked difference in the colonization of thetwo peoples: on the one hand, there were the adventurous CQureunJ M boilwho traded with the Indians and the French missionaries who sought toimplant Christianity in dark savagery; on the other, the English settledin their different colonies to establish governments designed to safeguardtheir religious and civil liberties. The Frenchman, therefore, exploredbroad streches of land and came into close relationship with the natives,but the Englishman worked out his happiness in the settlement.

FRENCH COLONIZATION.

The early colonization of Louisiana proceeded from Canada. TheFrench were allured by the stories told by Indians as to a great bodyof· water to the west, which was believed by the former to have emptiedinto the ''Western'' Ocean. This, it was thought, would permit them to setup a trade system with China. ·The explorers Jean Nicollet, in 1634, andSieur des Groseilliers, in 1658, and Fathers Menard and Allouez, liIOmeyears later, were among those who heard these accounts. But thegreatest figure eventually came to the scene: Robert Cavelier de la Sa11e1aNorman settler near Montreal. He had been informed by certain lndiansthat in tlJ,eirregion was the source of a river, called Ohio, which followeda westward course till it reached the sea. Such a story awakened inLa Salle dreJlms of commercial expansion for his country, for he supposedthat the way to the Pacific was at last to be found. He consequentlybegan the daring task of exploring the vast territory to which he resolutelydevoted the rest of his life. He followed the Ohio as far down as thesite of LouisVille, and, in 1670, he solemnly took possession, for France,of the vast territory "bounded on the one side· by the seas of the North

and West ane}.other sicleby the South Sea." Later, after making inces-sant 'Wanderingsand discoveries, he found out that the flow of the Mis-sissIppi did not end in the Pacific, Ocean but in the Gulf of Mexico; tocarv~ aituge empire for France out of the illimitable fore~ts became there-fore his cherished ambition. The hardships that he endured goaded himto still braver deeds and in the face of the most trying odds, he alwayskept before him the glory of his country and pushed on and on in theheart of Nature and amidst her elemental forces. On April 9, 1682, havingreached the mouth of the Mississippi, he formally annexed the wholecountry including all the territories already discovered by the Frenchas well as the Gulf Coast up to the River of Palms, naming it "Louisiana,"'after the then French sovereign, Louis XIV. Nothing of moment wasdone by the French Government until about 1698, when, for fear thatthe 'English King might seize the territory, it was' decided that a partyof colonists, under the able leadership of Pierre Le Moyne, Sieur D'Iber-ville, be sent out, the expedition sailing from Brest, France, on October28, 1698. Four months later (March 2, 1699) the expedition found themouth of the Mississippi River, and on March 9, the fearless explorer ar-rived at the site of New Orleans. The first settlement was planted inBiloxi in the same year: Three years afterwards (1712), Antoine Crozat,a wealthy merchant of far-seeing mind, obtained a charter from 'theKing for exclusive trade rights throughout the whole French domainoutside of Canada. The country was put under the government of Canada,it being alsl)'provided that the Custom of Paris and the laws, edicts andordinances of France were to be followed in the new colony. The govern-ment' of Louisiana was placed in the hands of a superior 'council, madeup of the Governor, the Intendent and two agents of Crozat, and Frenchcolonization began in earnest. But the strict trade laws and Crozat'sgreed impoverished the early settlers. By a plan of John Law, whofomed the Company of the West, which turned out to be a monumentalfiasco, the number of immigrants from France was greatly increased.In 1724, the Code Noi.r was passed for the protection and humane treat-lllent of slaves. Among the provisions of this Code, the following may beme:ntioned: The ROlJlanCatholic Jaith was to be inculcated 'in the mindsof the slaves. Those who were not ,properly fed or clothed could go theAttorney General qf the Superior Council for aid. Children under 14 yearsof age coul4, not ,be,separate4 from their parents.. Manumission wasallowed, with tJ1,epewission'of the Superior Council.

As a result of the war between England and France, Canada, togetherwith all the French territory east of the Mississippi, was ceded to theformer country by the Treaty of Paris signed in 1763. On the same day,by a secret treaty, France also transferred sovereignty in Louisiana to

, Spain, mainly to prevent the English from occupying it. The people ofLouisiana did not know of this change till the next year, when thecolonists were plunged into despair and discontent. They implored theFrench King for protection but received no encouragement.

In March, 1766, Don Antonio de mloa, who had come from Havana,arrived in a frigate to cause Spanish sovereignty to be recognized, but ashe had no sufficient force behind him, he found himself utterly helpless:However, on August 18, 1769, Don Ale'ltander O'Reilly, an Irishman in theSpanish military service, the first Spanish Governor of Louisiana, appearedin New Orleans with a strong reinforcement and the colony was con-strained to submit. The boundless tact and the broad statesmanship ofthis governor won the people's loyalty and strengthened Spanish dominion.He at once proceeded to reorganize the government along permanent lines.He abolished all the then existing French laws, except the Coile Nair,already mentioned. In lieu of the old system, he implanted the Spanishlaw, by publishing in November, 1769, in the French language, an extractfrom the whole body of Spanish jurisprudence in order to furnishelementary knowledge of the laws of the new sovereign. The NuewRecopilacion, promulgated in 1564, was then the latest code of Spain,designed to systematize the countless statutes, pragmatics, ordinances,capitulations of Cortes and letters in Council, although in point of fact,the compilation was a complete failure, making the laws of the Kingdom allthe more confused, and the observance of previous bodies of laws, suchas the Fuero Juzgo (XIII century), [I'uero Real (XIII century), Las Par-tidas (XIII century), Orile'1lamiento de Alcala (XIV century), and Leyesde Toro (XVI century), was therefore continued.

As to the effect on the French law of this step taken hy the newGovernor, the Supreme Court of Louisiana said in 1816:

"The publication, followed from that moment by an uninterruptedobservance of the Spanish law, has been received. as an introductionof the Spanish Code in all its parts, and must be considered al'lhaving repealed the laws formerly prevailing in Louisiana, whetherthey had continued in force by tacit or express consent of thegovernment." (Beard v. Poydras, 4 Mart. Rep. 349, 368.)

AMERICAN SOVEREIGNTY.

Three decades passed and by the treaties of San Ildefonso of October1, 1800 and March 21, 1801, Spain ceded the territory of Louisiana toFrance, but the agreement was not signed by the. Spanish king until October15, 1802. Colonial Prefect Laussat arrived at New Orleans on March 26,1e-03, and on May 18, the change of soverc:.gntywas formally announced bythe Spanish authorities to the people of Louisiana. However, when Laussat,on No·vember30, 1803, solemnly took possession of the territory in the nameof If'rance, he at the same timE' declared that the country had been trnns-ferred to the United States, by the Treaty of Paris signed April 30, 1803.So that the return of French sovereignty did not result in the promulga-tion 01 any French law to speak of. The law of Louisiana when the UnitedStates acquired the territory was therefore Spanish. When the treaty ofcession was discussed in the Senate f,or ratification in the Fall of the sameyear, New England senators opposed the acquisition of a territory inhabitedby a foreign race who could not be assimilated. When appropriation forthe execution of the treaty was debated in the Lower House, a similarobjection was made.

On December 20, 1803, W. C. C. Claiborne, Governor of the MississippiTerritory, was received in New Orleans, having been instructed by Jeffersonto set up a provisional government. Three months later (March 26, 1804),Congress organized a portion of the province into a territory, caliing itthe Territory of Orleans. The chief executive was appointed by thePresident of the United States and the legislative power was vested in theGovernor and a Legislative Council of thirteen freeholders. The judiciarysystem consisted of a district court of the United States, a Superior Courtnnd such inferior courts as might be created by the Legislative CouIlcilsubject to the approval of Congress. The first officials appointed underthe Act of Congress were· Claiborne, Governor; Brown, Secretary; Belle-chasse, Bore, Cantrelle, Clark, Debuys, Dow, Jones, Kenner, Morgan, Poy-dras, Roman, Watkins, and Wikoff, memhers of the Legislative Council;Duponceau, Kirby and Prevest, judges of the Superior Court; D. A. Hall,di~trict judge of the United States; Dickenson, district attorney; and LaBrehm d'Orgenois, marshal.

CONFLICT BETWEEN ANGLO-SAXON AND LATIN INSTITuTIONS.

The new order of things was highly unpopular. The people were deniedthe right to elect their own lawmakers, when other territories had been al-lowed to do so; the American settlers looked at the inhabitants with anair of superiority, and the misoonduct of certain officials from the Northshocked the idealistic and sensitive Creoles; English was the official lan-

guage of all the branches of the government, including the courts, but thepeople heartily disliked the "foreign idiom" i .and the Louisianians, WOOs8customs and institutions were in many respects antagonistic to those of thenew rulers,· stoutly defended them against the invasion of new ones. Thisstruggle also took place as regards the legal system. As will be seen later,civil law, as distinguished from commercial and criminal law, successfullyresisted the onset of the new legal institutions; pleading in civil cases isalso of civil and not common law, origin. The efforts to plant the civil lawfailed from the very beginning. As Chief Justice Eustis said in Successionof Franklin (7 La. Ann. 395, 418) :

"At the commencement of the dominion of the United States inLouisiana, some of the lawyers from the old States were disposed tointroduce here the system of laws with which they were familiar.• • • Efforts were not spared by this portion of the profession tointroduce the common law, as it has since been introduced and prevailsin other States, whose territory formerly belonged to France and Spain.

"But of the members of the bar conversant with the commonlaw, the most eminent did not favor its introduction as a generalsystem, and the consequent exclusion of the civil law. • • •

"The view of these distinguished men, reflecting the evident senseof the people, were impressed on the legislation of the State. The subjectwas deemed of such moment, that it was not trusted to ordinarylegislation; and hence the provisions, in both the Constitutions of 1812and 1845, which prohibit the introduction of any system of laws bygeneral reference.

In this condition of opinion the Codes of 1808 and 1825 wereprepared and enacted."

THE CODES.

These codes will now be treated. The territorial legislature by aresolution approved in June 1806, commissioned James Brown and MoreauLislet, both of whom were distinguished lawyers, to compile and prepare acivil code. The legislature positively enjoined them to make the civillaw by which the territory was then governed "the groundwork of saidcode," and as the civil law of Louisiana was Spanish, this first code wasan embodiment of Spanish jurisprudence. It is erroneously thought thatit was a mere copy of the Napoleon Code. On this point, the words of ashigh an authority as the Hon. E. T. Merrick, late Chief Justice of theSupreme Court of Louisiana, should drive away any doubt:

"A great misapprehension exists in the minds of many in regardto the civil code of Louisiana. It is supposed to be but a re-enact-IRent of the Napoleon Cde. It is true the French code preceded ourCode of 1808 by five years, and a projet of it (for the NapoleonCode, as adopted, had not reached the territory) may have suggested

to our legislators the necessity of reducing the laws, which. were iffthe Spanish language, a tongue foreign to the largest portion of thecitizens of Louisiana-Americans, or those who were of French des-cent-into a single code, which should be published in French andEnglish. • • •

"There are very many articles in the civil code of 1808, asamended in 1825 and continued by the recent revision of 1870, whichare identical with articles in the Napoleon code, and lead to thesupposition that whenever the compilers of the code of 1808 found anarticle in the projet of the :French code, which fully expressed thesense and meaning 0'1 a provision of the law of Louisiana, it was ap-propriated. In other instances, the French text was amended to conformto our law and so adopted. In others, the Spanish law was first writtenin French and translated into English. Nevertheless, the law of Loui-siana, where differing from the Napoleonic Code, have been preserved,and thus the civil code contains some provisions in contrast with theNapoleon Code."(2)

The first code was approved by the legislature on March 31, 1808. Butthe promulgation of this code did not uproot the Spanish law, for it wasexpressly provided that the code abrogated the. ancient laws only whenthe same were contrary to the code or irreconcilable therewith. Thus, Span-ish laws were still cited and applied together with the Louisiana Civil Code,or in the ab!lenceof any express provision of the code.(3)

That portion of the Partidas which was still in force in Louisiana wastranslated and published in 1819 by order of the Legislature.

Messrs. Livingston, Dervigny and Moreau Lislet were authorized bythe legislature on March 14, 1822, to revise the code of 1808. The revisedcode was sanctioned by the legislature on April 12, 1824, and promulgatedin 1825. To aid this new code, and bring about a wider comprehension ofthe laws, a remarkable act was passed. Lawyers felt that the enforcementof Spanish law wrought difficulties out of number, for even in Spainat that time the laws .were in a labyrinthical state. Hence, the "great

'repealing act" of March 25, 1828, provided that all the civil laws whichwere in force before the promulgation of the civil code of 1825 wererepealed. But even this radical iaw could not demolish the fundamentalprinciples underlying all positive laws. In the leading case of ReynoldAJ11. Swain et al., (13 La. 193, 198), the plaintiff sought to recover $1,500,the same being the rent due for the whole term of a lease contract enteredinto between the plaintiff and the defendants. The latter ~bandoned the

2. The Albany Law Journal, vol. 3, p. 270.3. Saul v. Creditors, 5 Mart. Rep. (N. S,) 576.

PJeJDiaee att.n- two months, whereu the period stipUlated WY- OIle ,..-.Judgment was rendered in favor of the plaintiff, which judp14Plt •••affirmed by the Supreme Court. Judge Martin, .~kiDg for the ~ut,said:

"In the case of Ohristy v. OtUtm4't7e,2 Martin, N. S., 451,thiacourt held, that if the tenant abandoned the premises during the leue,he is bound for thel'ellt for the whole term at· once. It Us beencontended that this decision took place under the civil laws of this state,which were repealed in 1828. • • •

liThe repeal spoken of· • can not extend beyond the laws whichthe legislature itself had enacted j for it is this alone which it mayrepeal. • • • It can not be extended to those unwritten laws whichdo not derive their authority from the positive institution of anypoople, as the revealed law, the natural law, the law of nations, the lawsof peace and war,and those laws wl}ichare founded on those relations ofjustice that existed in. the nature of things, antecedent to any poaitiveprecept.

We, therefore, conclude, that the Spanish, Roman,· and Frenchcivil laws,. which the legislature repealed, are the positive, written, 01'

statute laws of those nations, and of this state; and only such as wereintroductory of a new rule, and not those which were merely decl.,.-tory-that the legislature did fIOt intend to abrogate tM,e pritHlip_of law which had been established or settled by the tUmiofW of ~of justice."

The principle thus announced lent solidity and abiding strength to thefoundation rules of the civil law which to-day continues to be the bedrockof the law of persons, property and contracts in the State of Louisiana.

The civil code was revised in 1870, this statute being the presentcode on civil matters in that State. The division of this code is as folloWI:

Book.1. Of PersOtl8.Title I, Of the Distinctions of Persons.

" II, Of Domicile and the Manner of Changing the Same." III,· Of Absentees." IV, Of Husband and Wife." V, Of Separation from Bed and Board and Of DivOl'l)e." VI, Of Master and Servant." VII, Of Father and Child." VIII, of Minors." IX, Of Persons Incapable of Administering their Estates, Whether

On Aecount of Insanity or Some Other Infirmity, and Of theirInterdictioa. and Curatorship.

" X, Of CorporatioWi.

Book II. Of Things and Of Differen' MoiJIijica'ions of OwnenlKp.7Tlle I, Of Things.

" II, Of Ownership." III, Of Usufruct, Use and Habitation." IV, Of Predial Servitudes or Servitudes of Land." V, of Fixin~ the Limits and Surveying of Lands.". VI, of New Works, the Erection of Which Can be Stopped or Pre-

vented.

Book III. 0f,he Different Modes of Acquiring the Ownership ofThings.

Title I, Of Successions." II, Of Donations Inter Vivos (Between Living Persons), and Mortis

Causa (In Prospect of Death)." III, Of Obligations." IV, Of Conventional Obligations." V, Of Quasi Contracts, and Of Offences and Quasi Offences." VI, Of the Marriage Contract, and Of the RespE'ctiveRights of the

Parties in Relation to their Property." VII, Of Sale." VIII, Of Exchange." IX, Of Lease." X, Of Rents and Annuitie.." XI, Of Partnership." XII, Of Loan." XIII, Of Deposit and Sequestration." XIV, Of Aleatory Contracts." XV, Of Mandate." XVI, Of Suretyship." XVII, Of Transactions or Compromise." XVIII, Of Respite." XIX, Of Arbitration." XX, Of Pledge•., XXI, Of Privileges." XXII, Of Mortgages." XXIII, Of Occupancy, Possession and Prescription .•, XXIV, of the Signification of Sundry Terms of Law Employed in

this Code.It is interesting to note that while the background of Louisiana· civil

tnw is Spanish, decisions of the French Court of Cassation and theopinioDsuf Frencll writers have greatly moulded the decisions of Louisiana courts.

As the court said in Reynoldsv. Swain, supra, "It is the daily practieein our.oourtstoresort to thtj lam of Rome and France, an:dthe oommlltl-taries on those laws, for the elucidation of principles applieable to. ana-logous cases." Probably this preference for French law may be ascribedin part to the fact that the French language is better known in the Statethan Spanish, and that the Latin inhabitants are mostly of French origin.

It remains for the writer to mention the laws on other subjects.

PENAL LA\V.

Criminal law and criminal procedure are based on English jurispru--dence. In fact, this was the unequivocal policy from the very beginningof Am~rican government in Louisiana. As early as 1805, before the CivilCode was promulgated, a general statute on crimes and misdemeanorswas enacted by the territorial legislature, this emphatic clause in section33 thereof being added:

"AU the crimes, offences, and misdemeanors hereinbefore named,shall be taken, intended and construed according to and in conformitywith the law of England; and the forms of indictment (divested how-ever of unnecessary prolixity), the method of trial, the rules of evidence,and all other proceedings whatsoever in the prcsecution of the said.crimes, offences and misdemeanors, changing what ought to be changed,shall be, except as is by this act otherwise provided for, according tothe said common law."

There was a curious feature of this act which might be mentioned:while it comprehensively defined many crimes and misdemeanors, yet in re-gard to many well-known crimes, such as murder, robbery, burglary, arson,rape, forgery, it merely referred to them by mime. Despite the oppositio~of many, the clause has been preserved. But, as to the description otcrimes by reference, it is an established role in the State that only thocrimes enumerated in the Act of 1805 could be punished, without a defini-tion. TItus, in State v. Gaster, 45 La. Ann. 636 (1893) it was held thatsection 869 of the Revised Statutes, punishing "misdemeanors in offtce"without stating the nature of such crime, was violative of the State Cons-titution, because this crime was not named in the Act of 1805 or in anyother statute of Louisiana. The courts have likewise laid down the prin-aple that section 33 of the act of 1805 introduced the criminal law ofEngland as it stood in that year, together with the acts of Parliament pasllCdtheretofore, amending or repealing common law rulea.(4)

COMYERCIAL LAW.

The economicdevelopmel).tof Louisiana is and has been since the Louisi-ana Purchase vitally connected with that of the rest of Union. Hence,her law regulating business relations is the law of the otb~r States. Nego,.tiable instruments, maritime contracts, bankruptcy, etc.,' are governed bythe same general principles obtaining in the whole Nation. In acoordan~with a resolution of. the Legislature in 1822, a proposed Code of Com-merce was drafted but never given legislative sanction.

ADJEO'rIVE LAW.

Criminal procedure, as already pointed out, is similar to that of theother States.

Civil procedure was tint regulated by the Act of 1805 which derivedits principles from the Spanish procedural law. A subsequent code ofpractice was promulgated in 1825, revised in 1870. The State of Louisianaoccupies a peculiar position not only with respect to her civil law but al~as to her civil procedure, both of which are the outgrowth of Spanishjurisprudence. (5) The baffling complications and the stubborn conflictsresulting from the vindication of substantive rights under one system oflaw through the instrumentalities of a mode of pleading which comes fromanother legal source, must have been among the causes which moved thelegislators of Louisiana to retain at least in large measure Spanish proceduralmethods.(6)

The rules of evidence, in civil and criminal eases, proceed from theEnglish common law.

Before dropping the consideration of Louisiana law, we might in passingadvert to the use of legal terms in that State. The Louisiana bench and barin their decisions and pleadings in English naturally employed technicalnames that are foreign to the common·law advocate. The Writer has col~lected in the footnote a number of such words, hoping that we in thePhilippines might adopt some· of them, which appear in the Louisiana'Civil Code and reports; terms employed in the Washington tr8.9s1ationinuse here are also inserted.(7)

OTHER STATES.

Michigan.As has been said, in 1763, France ceded to England all her possessions

and claims east of the Mississippi, which included what is now the State ofII. 8ee Hepburn, Development of Code Pleadlne, p. 111, note.6. T,h~sesame problems.are not unknown to tbe laW7er In the Pblllppinell, a1thoun

perbaps the expedition of suits secured by the present practlcs In tbe 11IIandsgreatlyIlutwelehs such dlfllcultles.

7. Words and phrases referred to: [see next page.]

1tfichigan. This area passed to the American people as a Newt of theW ••.of Independence. It w.as made the Territory of Michigan:ia 1806 ana acl.IIlitted to the Union in 1837.

When French explorers and colonists occupied the territory, they otoourse took with them their own laws. It is said that during the 4ntyears of American regime, a majority of the litigants, witnesses and ~uroraoould not understand English, so the French language was often IJlsed in

I.A.IN

Patria PotestasFiliacionTutelaTutela dativa

ProtutorLegitimacionReconocimiento de un

hijo· naturalAlimentos

Bienes inmueblesBienes mueblesPropiedadDerecho de accesionAdjuncion

EspecificacionMezcla 0 conmistionUsufructo, uso y ha-

bitaci6nServidumbres

Servidumbre de media-neria

Servidumtre de paso

Servidumbres volunta-rias

Servidumbres de luceSy vistas

Servidumbres discontl-nuas

Diferentes modos de ad-quirir Ia propiedad

LOutSIA.NA.

Paternal autlwrityFiliationTutorahipDative tutorship

Under-tutorLegitimationAknowledgment of an

illegitimate childAlimony

PROPERTYImmovablesMovablesOwnershipRight of accesionUnion of aC(l(!6lionto

principalSpecificationConfusionUsufruct; use and ha-

bitationPredial or landed ser-

vitudesWall in common

Right of pasage and ofway

Conventional or volun-tary servitudes

Servitudes of view andlight

Discontinuous servitudes

Different modes of ac-quiring the owner-ship of things

PBILI'I'PIN. ULoUftllt

Parental authorityFiliationGuardianshipGuardianship by ap-

pointmentProtutorLegitimationAcknowledgment of ~

tural childrenSupport

Real propertyPersonal propertyOwnershipRight of acceSllion

Usufruct, use and oC-cupancy

Easements

Easements of light andview

Intennettent eaeementfl

Different ways of ac-quiring ownership

coU1't.(8) But the common law of England was from the dawn o£Amerieango\Terpment introduced. The territorial legislature in 1810 expressly ab~rogated the Custom of Paris, putting the English oommon law in itslJtead.

Te:catJ.The terrirory of the Lone Star State was formerly under Spanish

.domination. After the Mexican Revolution against Spain, it was madea part of the Mexican Republic, which was set up in 1824. From thistime on, American citizens began to settle in Texas, which finally severedher political' bonds with Mexico in 1836, and established a republic.After several years of separate existence, Texas was admitted to the Amer-

SPAINSucesion legitimaRepudiaci6ti de la he-

renciaBeneficia de inventarioDerecho de deliberarDesheredaci6nHerederos forzososLegitima

ColacionLa parte de libre dis-

posicion

ErrorObjeto de los contratosCausa de los contratos

Obligacion de darObligacion de hacer 0

de no bacerCaSo fortuitoObligaciones purasCondicion suspensivaCondicion resolutoria

LOUISIANA

Legal successionsRenunciation of suc-

cessionBenefit of inventoryTerm for deliberatingDisinherisonForced ..heirsLegitime or legal por-

tionCollationDisposable portion or

disposable quantum

OBLIGATIONS

Onerous contracts

ErrorObject of contractsCause of contracts

Obligation of givingObligation to do or nat

to doFortuitous eventSimple obligationsSuspensive conditionResolutory or dissolv-

ing conditionPotestativ-e condition

PHILIPPtNm I8t.ANJl"

Legal successionsRepudiation of the in-

heritanceBenefit of inventoryRight to deliberateDisinheritanceHeirs by force of lawLegal portion

CollationFree part

Contracts involving avaluable consideration

ErrorObject of contractsConsideration of con-

tractsObligation to giveObligation of doing or

not doingFortuitous eventPure obligationsCondition precedentCondition subsequent

Purely compulsory con-dition

ieAD Union in 1845. In the meantime, the Texan Congress· had paued •••,,]rleb are of intense interest in connection with the subject' of this article.Spanish and Mexican law waS in force at the time of the separation. Inthe very first year of Texan independence, the Congress of Texasintrodueedthe English law on evidence, (December 20, 1836). By the Act of Jan-uary 20, 1840, the Texan Congress adopted the common law as a systemso far as it was not inconsistent with the Texas· constitution and laws.

However, this act did not completely wipe out the Mexican or Spanishlaw. Thus, the laws of forced heirship were observed until they were

SPAIN

Condicion casualCondicion mixtaObligaciones a plazo

En moraObligaciones conjuntasObligaciones alternati-

vasOb!igacion mancomuna-

da

Obligaciones divisiblesObligaciones indivisiblesObligaciones con clausu-

la penal

Ofreeimiento del pagoy consignacion

Cesion de bienes

Condonaci6n de la deu-da

Confusion de dereehosPerdida de la cosa de-

bidaLesion

LOUISIANA

Casual conditionMixed conditio.';:Obligations with a tern..

In moraConjunctive obligationsAlternative obligations

Joint obligations (See51 La. Ann. 1484; 52La Ann. 213; Art.2086, La. C. C.)

Obligation in Bolido(See arts. 2088 and2091; La. C. C.)

Divisible obligationsIndivisible obligationsPenal obligation or

obligations with pe-nal clauses

Payment or perform-ance

Imputation of pay-ments

Tender of payment and<lonsignment

Cession or surrender ofproperty

Remission of the debt

Confusion of rightsLoss of the thing due

PHILIPPUfII I_LAmMI

Casual conditionMixed conditionObligations with defi-

nite periods

Divisible obligationsIndivisible obligationsObligations with a penal

clause

Application of pay-ments

Tender of payment andconsignation

Assignment of property

Confusion of rightsLoss of the thing due

abolisbedby the Act of the Legislature of July 24, 1856; a decade after theadmiMion of Texas as a State. And even at the present time, the systemo-f community property of husband and wife obtains in that State.(9) Sec.2968 of the Texas Civil Statutes: provides "All property acquired by eitherhusband or wife during the marriage, except that which -is acquired by gift,devise or descent, shall be deemed the common property of the husband.and wife, and during the coverture may be disposed of by the husband only."

ExchangeReconductionRentsMandate; procuration;

power of attorueyCommodatum or loan Commodatum

for useMutuum or loan for Simple loan

consumptionDeposito Deposit DepositumSecuestro Sequestration SequestrationContrato aleatorio Aleatory contract Aleatory contractFianza Suretyship SecurityTransacci6n Transaction CompromiseCompromiso Submission ArbitrationConcurso Respite Concurrence of_~redits.

9. Some other '''tQ, such •• California and Wasblngton, have followed 'tile .lv~1law OD tblll subject.

8PAIN

Capitulaciones matrimo.niales

Donaciones por razon dematrimonio

DoteBienes paraferuales

Contrato de compra yventa

EntregaSaneamiento en caso de

eviccionVicio redhibitorio

PermutaReconducci6nCensosMandato

LOUl8IANA

Matrimonial agreements

Donations made in con-sideration of marri-age

Dowry; dotal propertyParapherual or extra-

dotal propertyPartnership or commu-

nity of acquets orgains

Contract of Sale

'rradition or deliveryWarranty in case of

evictionRedhibitory vice

Gifts by reason of mar~riage

DowryParapherual property

Contract of purchaseand sale

Delivery\Yarranty in case of

evictionHidden defect or redhi-

bitory viceConventional redemp-

tionExchangeNew leaseAnnuitiesAgency

The other States which have hoen under the Ilway of the Spaniah, J'lenek,or Mexieaa law will not be examined. Sutd~ it to aay that they ht.ve .-abandoned the civil law.

p()rlo Rico.If Louisiana it! plenteoul$ in valUllblll leuona to the student of Phil-

ippine jurispl"Udence, Porto Rico i8 no 1_ instl"Uctiv8 to him beoaUle ofthe many similaritiell in the political organization of the two eountri.befol'Eland after the implantation of American sovereignty.

Porto Rico and other illlands then under Spanillh sQvereignty ill theWest lndiell, together with Cuba, the Philippin~ and Guam, were at thethe olOllllof the Spanish-AmericlUl War, ceded to the UnitecJ States undel'the Trea.ty of Paris of 1898. During the rnilitary government (October 1&,1898 to May 1, 1900), ~ong the ch~nges m&de were thQ fOOl"Janiaatiollof the courts and certain alterationll" in· criminal and civil prooedul'El. See",tion 8 of the Organic Act of Porto Rico approved by COngl'est'Ion April12,1900, provided that the "laws and ordinances of Porto Rico now in torneshall continue in full force llnd effect, except"~ altered, amended ormodified hereinafter, or as altered or modified by military orders· and deereel!in force when this act shall take effect, and so far 8.liI the same al'El notinconsistent and in conflict with the statutory laws of the United State.not locally inapplicable or the provisions heleo!."

A Commission appointed by President McKinley to revise llnd compilethe laws of Porto Rioo was in operation in the years 1900 and 1901. TheLegislative Assembly, composed of the Executive Council and the House ofDelegates, in the Act of 1901, .created another Commission tQ codify thePorto Rican laws. At the present time, Porto Rico has a revised CivilCode, and new Political Code, Penal Code, Code of Civil Procedure andCode of Criminal Procedure.

<JlVIL LAW.

The Civil Code of Porto Rico Il8 revised is IIra,cticll,Uythe lllI,IUe••the original 8panillh Civil Code, in striking contrut with OUl'l'l, whieb 11M

been so radically, not to say unskillfully, altered and patdled up that itmay he said to have virtually lost its nltmeu a code-which implies alogical and scientific arrangement and a harmonious layillJ down of prin-ciple&-and is now but a mass of detnched and often oonflictinr p•.o-n.ions.The only important changes in the Porto Rican Code are the following:

-}:--Private corporations and associations not for PC(JuQiary protlt areregulated by two acts of Mareh 9, 1911.

2. Title IV, Book, I, regardinJr marring-e baa boon moditled.

Among the changes we nmy mention these : Marriage is a· civil. insti-tution originating in a civil ~ontract.(lO) Procedure in the cel~bration ofmarriage must follow the Act ()f March 10, 1904. While the husband isstill the administrator of the conjugal property, (11) it is neverthelessprovided that "the husband and wife shall have the right to manage andfreely dispose of their respective separate estates."(12) "The wife maycontract, and appear in court, in all eases referring to the defense of herown rights· and property, to the discharge of patria potestas, guardianshipor administration conferred on her by the law, and to the exercise ()f aprofession, employment or occupation."(13) The husband can not give, sellor bind £.01" a consideration the real estate of the conjugal partnership,without the express consent of: the wife,(14) whick is different from theSpanish law.(15) Provisions regulating paraphernal property have beeneliminated. Absolute divorce has been introduced, for in section 173 it illstated that "a div()rce carries with it a complete dissolution of all matri-monial ties, and the division of all the property and effects between theparties to the' marriage."

3. The articles touching legitimation by royal concession have beeneliminated.

4. The definition of natural children has been modified and is now asfollows: "~atural children are th<lsebOrI\out of wedlock, from parents who,at the moment when such children were' conceived or were born could haveintermarried with or without dispensation." It will be observed that, saveas regards dispensation, this is the concept (If natural children according toLaw 11 of Toro.

5. Articles on the proof of filiation have been expunged.6. Protutorship and the family council have been done away with.7. Civil obligations, arising from crimes and misdemeanors, are

governed by the Civil and not by the Penal Code.From the foregoing it can be seen that the civil law subjects now wholly

. or partly regulated by American laws in the Philippine Islands are stillgoverned by the Spanish Civil Code in Porto Rico. The following mattersare entirely preserved or slightly modified in that island:

1. Presumption of legitimacy.2. Adoption.3. Patria potestal/.

10. See. 129.11. Sec. 1159.12. See. 160.18. Sec. 161.1.. Sec. 1828.115. Art. 1413, !!putah Ckil Code.

4. Tlltoiship.5. Eiri8acipatioD.6. Division of· property held in COlDJJlOD.

1. Form and execution of wills, except that niilitary and Ilaval wil".are no longer separately recognized.

8. Executors.9. Acceptance and repudiation of inheritance; benefit of inventory

and right to deliberate; division of inheritance; effects and resciasiOD ofsuch division, and p&yUlent of hereditary debts.

10. Proof of obligations, but American law of evidence is found iltthe Act of MaJreh 9, 1905.

11. Concurrence and preference of credits.12. Pl-eacription of ownel'l'lhip and other real rights, and of acti08&

O'rHlm LAWS.

Certain portions of the Code of .Commerce are still operative, butothers have been superseded by the acts of the Legislative Assembly andby the navigation, bankruptcy and other laws <If the United States extendedtoPottu Rico.

The Spanish Penal Code is no longer in force. The new Penal Codederives its doctrines hom Anglo-American fountainheads. In this resp~it is significant that Louisiana. and Porto Rico have pursued the sameline of action.

Civil procedure rests substantially on the same modes of proceedingsin the "code" States, as distinguished from the "common law" States. TheCode of Criminal Procedure has in like manner discarded the antiquatedand unwieldy Spanish methods in criminal matters. Its sources are theCode of Criminal Procedure of California and Montana.(18)

Evidence is mostly English in character.The Spanish Mortgage Law as applied to Cuba, Porto Rico and tM

Philippines is still observed. The Act of March 10, 1904, provided forthe organization of registries of property.

The Spanish Law of Waters of 1877(17) has been expressly preservedby an Act of the Legislative Assembly, approved March 12, 1903. Thislaw transferred the duties of officials under the Spanish government tothose created by American sovereignty. It would be advisable to take thesame step in the Philippine Islands, for while the Irrigation Act statesin section 51 that the existing Ley d& Aguas shall contfnue in f~, it isonly through an ~safe process of conjecture that lawyers can judge whoare called upo~ to carry out the administrative provisions of the latter.

16. Rowe, The United States and Porto RIco, 1>. 16111. Oura la the Law ot Watera of 1866.

PHILIPPIN:E ISLANDS

It were annoying to the reader to have to follow 8 lengthy accountof the already known changes made in thll' Spanish laws in the islands.Fol"ol1r purpose's, It mere !'lumttuu'ywill be sufficient. The Civil Code hassuffered modifications by the publication of the Coda of Civil Pro(ledl1~which introduced new rules of guardianship, administration of decedents'l!!ltates, e~defioll and ptescription. ThoSilparts of the Mercantile Codetelating to locitdadeB an6nimtJ6, commercial pllpers, inllOlvencyand pre-scription have been replaced by Aot No. 1459, the Negotiable Instrument8LaW, the Insolvency Law, and the Code of Civil PI'ooedure, respectively,all of which originate from the American law. As for the Spanish PenalCode, the Commission has passed many Aots on crimes, according toAmerican models. Our entire adjectivEllaw is likewise drawn from Amer-Ican sources. Political law is, of course, also patterned after Americanstandards.

CONCLUSION

Recapitulating, we have seen that in Louisiana, Porto Rico and thePhilippines, where the American flag has been raised, the civil law has'withstood all attempts to supplant it. On the other hand, it has disap-peared from the other States where it formerly obtained. Adjective lawhas readily yielded to innovation. In public offences, Louisiana andPorto Rico immediately took up the principles anchored on Anglo-Saxon.Iiberty and government, whereas the Philippines still obeys to a consider-able extent Spanish jurisprudence. As for things commercial, Louisianallccepted American law; in Porto Rico and the Philippine tslands there illa decided leaning toward the same policy.

The reasons for these tendencies of legislation are not far to seek.In the shaping of juridical growth in a country where two distinct civiliza-tions come face to face, there are certain principles which' human fore-sight and general need have established. Such truths make for an or-derly development of legal institutions and the jurist who ignores them ismaking a grievous mistake, for no one can restrain the operation of naturalforces, in law as well as in other manifestations of social life.

The civil law', in the midst of the sweeping retorIDSin other depart-ments or th.e legal st~cture, has d..emonstrated a. r; ~arkable stability. ~d.drmness. Why' It IS commonplaceto say thatlJ,lw IS the result of SOCIalconditions, but it is true nevertheless. Now, the c~J affects therelations between husband and wife, and between p~nd child; ithas to do with the holding and enjoyment of property; it deals withthe ways of dividing inheritance, and it regulates the general transactionilof the inhabitants. It is' the law that ~omes pa~ and parcel of the

ijf~ pf ~he community ana is woven into the socm,I fabric, ••o~ thJm~.~ ot~ef.laW', It is t.h~ J,II.wt9't i& welile4intq th~. pllOple'8"fft:lctW.·~_ft.P.4prej~4ices. HeJ1fl~!t4e ~~ens ~~y look even with in4iffereJl~~ "'~th.e t:ransf~mnat~olJof the law in other matters, bu~ ~hey will ~Q~ ep4~llnyaubstantial change in their civil law. The new gove~n~ O~Il. ~otlInPo.seII neW'system of family, property, successional and cqn~racrnaflaw becaus!l it can not by legislation prescribe new cu~tOJDSand qew ~~~if;"of thought. It might l1S well enact II. law ~ompeU1ngevery citiJell t~speak the language of the new sovereign.

But the evident adaptability of. th~ other ~ranches ()fthe IflW isuo lel;ls ~teresting than ~he intractableness ·of the civil IlJ.w. 'fhe aO-ceptance of English la~ sp far as commercial dealings arfl cOl)cerned is~~ impeUip.~y, in view of ~he deep-seate4 flCopom~crelati6nliwhillh Ill$ nl1t»rally begotten by ~he, political connectioQ. between th~~the~ country and tbecolpny. SI?ll.¢sl1 pro~dm::e and tM4-enee 81*

cQnfesseqJy inferior to American metli~pfeQver; they fl-reinsepllrably~llie4 with th,e administration of justice fpr w4ich the lleW t'egime isresponsible. Hence, the adoption o~erican pract~ce and proofs is alogiclll meas~re, if qot an imperious waJlt~egarding crimes ~d mis.·demeanors, Louisiana and Porto Rico, as ~iready P9illted Pllt,~Q.v~ cp,sttheir principles in English moulds, while the PhilippineR, joltrungeto say,remains chiefly under Spanish influence. The writer might venture the:-otatementthat we in the islands have not been as discerning and con-sistent as the people of Louisiana and Porto Rico. Criminal law isconcededly public law; in the last analysiK, it is political law as well.It directly and immediately involves the liberty of the citizen and theuiltramelled enjoyment of his property. It aims at a proper muintennneeof State security and the peace of the inhabitants. It is, like the lawsorganizing the political diviKions and sub-divisions of the government,a practical application of ~~~deas of liberty and constitutionul theories.of the mother country. ~twithstanding these unquestionable proposi-tions and despite the examples of Louisiana and Porto Rico, the Philip~pines has clung to a surprising and anomalous attitude. The implanta-tion of American Hovereignty carried with it the establiKhment in thearchipelago of those maxims of individual rights which constitute thelegitimate pride of the Anglo-Suxon race. And yet the American gov-ernment still observes a Penal Code which, however scientific, falls Abortin many respects of the liberal standards of the English-speaking world.To prove this, it is sufficient to remind the reader of the fact that it hasbeen necessary for the Philippine Commi;.;;.;ionto pasl'l new acts, .~dfor· the courts to reject many artiCles· as being repugnnnt to Amerietin

insiitutions.(18) It is therefore to ·be hoped that in the new PenalCode' about to be submitted to the LegislJtture, we may draw som~lessons from Louisiana and Porto Rico. ""The civil law is our sacredlegacj from Spain and the ancient learning Qf Rome, and judging from theexperience of other countries, it· will survive all innovations to be wroughthere. But the penal law of 'Spain, if we value English liberties, is doomedto fall. Its underlying maxims must go from these shores, as they havepassed into history in Louisiana and Porto Rico at the bidding of Amer-ican Democracy.

The writer will Dot conclude without taking the liberty to suggestthat we in the Philippines take a deeper interest in the civil law of~uisiana, which is at bottom Spanish. Set up about a century and ahalf ago, it has had free scope. The Louisiana Civil Code is over onehundred years -old and the Louisiana courts, made up of such men88 Francois Xavier Martin, George Eustis and Edward Bermudez, haveadmirably propounded its foundation principles and its various details,thus giving a rich and lasting contribution to the civil law of RQme.To the lawyer and jurist in the Philippines, the Louisiana reports, whichrun up to over 150 volumes, is an unfailing reservoir of helpful guidanceand juridical wisdom.