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WHEN

THE CUBAN
CUBAN MUNICIPALITY.

BY VICTOR S. CLARK.

HEN our officials assumed the administration of Spain's former colonies, they found in existence a local political unit unfamiliar to their past experience. Many were probably unaware how very distinct from any homologous division in the United States was the Spanish municipality which they then encountered. Yet it had existed continuously in the New World since the time of the discovery, with only such changes as were necessary to keep it in harmony with the institutions of the home country. ancestry, traditions, and theory of government, however, were not only different from those of an American township or county, but they represented a line of political development that had begun to diverge from our own centuries before the Christian era.

Its

The Cuban municipality is a lineal descendant of the Roman municipality, which in turn was a product of a Mediterranean civic culture extending back to the days of Troy and Pergamum. The Græco-Italic civilization was urban, and during its long continuance the historical precedence of the rural to the city community was forgotten. The city was regarded as the primary element of the body politic. It ruled the country like a possession or a piece of property. Such a civilization could not develop representative government, which is essentially the political machine of a scattered rural population undominated by any urban center. Rome's easy conquest of the ancient world was partly due to this feature of its political organization. A city could not evade her armies, and when she had once mastered this central ganglion of civic activity all the coöperative life of the dependent territory was paralyzed. The rural organization of the Teutonic tribes was a barrier to her progress. It is from Rome, who in turn borrowed from her predecessors, that we get the theory and methods of centralized administration, which, applied to local government, produce the Cuban municipality. With us, on the other hand, the primary cell of the body politic is the rural community. The local unit is the depositary of all residual authority, and in it originate the ultimate motor impulses of government. We may not formulate this thought clearly in our minds, but unconsciously we accept and apply it in our political reasoning. It is not strange, therefore, that the municipal system of the Spanish colonies was unfamiliar, in both form and theory, to our administrators.

SURVIVALS OF THE ROMAN SYSTEM.

The municipality in Spanish times was essentially an imposed government. Its authority was derived and its activities were directed from above. Sometimes it was principally a taxing unit, instituted primarily for fiscal interests. During the decadence of the Roman Empire municipal officials were made personally responsible for the imperial revenues of their locality. It was obligatory to accept appointment to these unwelcome dignities, and many a subterfuge was adopted by the wealthier residents of the provincial towns to escape honors that often imperilled their private fortunes. In this respect history repeated itself in Spain's colonies. A native work on Philippine customs tells us how a municipal officer loses his patrimony through the expenses of his office, and another involuntary appointee finds his property bonded to the treasury of the state against his will for the fulfillment of his official obligations,—which consisted of wringing a certain sum of taxes from his fellow townsmen.

The judicial functions of the municipal governments early assumed prominence. The name of the principal city officer-the alcalde-is the Arabic word for judge, the familiar el cadi of the "Arabian Nights." Court fees once made these offices very lucrative. They were sold or granted, like English church livings, to wealthy subjects, and until quite recently were disposed of by auction. It was not until 1844 that this practice of selling municipal offices to the highest bidder was entirely discontinued in Cuba.

CUBAN CITY COUNCILS IN EARLY TIMES.

The earliest Cuban municipalities date from 1540. They were formed after the precedent of Spain's mediæval cities, with an alcalde and city council, the latter often known in those days as the cabildo. For several hundred years these local bodies were vigorous, and possessed considerable authority. The Cuban cabildos made grants of their hinterland to private petitioners, and exercised other property and judicial rights almost like independent colonies. Some of the city councils in South America actually levied war and instituted rebellions. Spain promptly discouraged such an exuberant exercise of local powers, however, and succeeded in making the councils merely administrative bodies. In 1850, ten of the thirty-two towns of Cuba were in

charge of municipal committees, which consisted simply of a legal officer and two advisers. The main municipal functions at this time were nominally the same as at present, and included the support and supervision of police, primary edu. cation, public health, and public improvements. All of these duties were so neglected that Trinidad, with eighteen thousand inhabitants, had no city hall, public water supply, schools, charities, or municipal police. The only public enterprise was a few street lamps supported by private subscription. Similar conditions prevailed in Santiago. In Havana the police received no regular salary, being paid by a share of the fines collected from offenders arrested by them and from certain half-legalized extortions. There was no local tax for public improvement except a carriage tax, the proceeds of which were devoted to paving the streets.

LOCAL GOVERNMENT BEFORE AND AFTER THE WAR.

The

Modern municipal government in Cuba dates from the close of the ten years' insurrection, in 1878, when the organic municipal laws of Spain were extended to that island. It was this form of local government, very slightly modified by subsequent acts and administrative decrees, that our officials found in operation in Cuba. military government instituted a number of changes demanded by reconstruction conditions, the most important of which relate to elections and taxation. Some municipalities were also suppressed in the interest of economy, having been created unnecessarily in Spanish times to provide berths for peninsular politicians. The new Cuban constitution contains a municipal title defining in a broad way the relations of the municipality to the other governing powers and determining its form of government. This title may be construed so as to guarantee local autonomy as complete as exists in the United States, for all intervention by superior authority must be justified by some violation of the constitution or of the general laws and confirmed by a judicial decision.

These constitutional provisions place the municipalities upon a new basis-Anglo-Saxon in theory-and make them the depositaries of orig inal powers. As yet this change is only nominal, and the ability of the untried municipal administrators to cope with the new responsibilities involved is by no means demonstrated.

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tion and political thought will assert themselves to make the local governments less independent and spontaneous than in our own country.

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PRESENT FUNCTIONS OF ALCALDE AND COUNCIL.

Until the Cuban Congress enacts laws supplanting those in force, the details of municipal organization and administration will be regulated by the Spanish municipal code, as amended by the orders of the military government. The constitution provides for a municipal council and alcalde elected by direct vote, and gives the council authority to decide all matters relating exclusively to the municipalities, prepare budgets, provide necessary revenues, contract loans, and appoint and discharge employees. The alcalde is an executive officer, with a qualified veto upon the legislation of the council. Every municipality is a judicial district, and justices are elected at municipal elections and paid from the municipal budgets. Other officers have no judicial functions.

WARDS AND DISTRICTS.

A municipality consists of a town and a surrounding rural district. The area of the latter may vary from a few square miles to that of one of our larger counties. It may itself include villages of considerable size. The municipality is divided into wards or barrios, each of which has its ward mayor, who performs administrative functions under the direction of the mayor. He is appointed by the latter from among the resi dents of the ward, and is not a member of the municipal council. Several barrios form a subdistrict of the municipality and bave at their head a deputy mayor, who is clected by the council from among its members. There is a third municipal subdivision, the electoral district. Councilmen are residents of and represent these. Their limits are determined by the munipal council. nipal council. Provision is made for minority representation by allowing no elector to vote for the full number of councilmen representing his district. For instance, if there are four aldermen to be chosen,-which is the most usual number, he can vote for but three of the candidates. The councils are renewed by half every two years.

MUNICIPAL FINANCES.

General taxes are assessed by a board consisting of the municipal council and an equal number of citizens drawn by lot from lists of representative taxpayers. This board also authorizes new taxes and audits municipal accounts. Incomes from real property are assessed at practically their actual value, though an order of the Spanish council required that they should be estimated

at one and a half times the rent in case of rural estates. Plantation crops for occupants' consumption are not included in reckoning incomes. The maximum legal tax rate varies from 6 to 12 per cent. on urban property, and from 2 to 6 per cent. on exclusively agricultural property, according to locality, the rate being highest in Havana and vicinity. Sugar plantations containing mills pay 8 per cent.

The aggregate revenue of the Cuban municipalities during the last fiscal year was $4,270,000, of which $1,349,000 was derived from the tax on incomes from land and improvements, and $1,262,000 from the tax on industries and occupations. In the order of their importance the other sources of revenue were,-water service, $359,000; income from municipal property, $321,000; abattoir fees, $297,000; liquor consumption tax, $183,000; and fines and penalties, $110,000. The remaining $389,000 was raised from sixteen other sources, the two most impor tant of which were a carriage and transportation tax and a license fee required of peddlers and venders in the public highways. Urban property pays $1,034,000, and rural property pays $315,000 of the territorial tax. The military government has suppressed the consumption taxes on food, which were formerly a main reliance for local revenues.

The liquor business contributes the largest item to the industrial tax. There are 4,797 drink shops in Cuba, which pay an aggregate tax of $122,375. Next in order come 123 banking houses, paying $75,675; 1,482 general stores, paying $69,508; 485 pharmacies, pay. ing $41,690; 776 cafés, paying $36,208, and so on through the 236 minor industries included in the assessment rolls. Formerly the collection of taxes was farmed out to the highest bidder, but this practice has been stopped by the military government, and they are now collected by public officials.

Since the war the general treasury has paid an important share of the municipal expenses. This amounts at present to nearly $1,500,000, and includes in round numbers $1,250,000 for public schools, $150,000 for hospitals and charities, and $50,000 for jails, besides such assistance as may be given for local sanitation and public works. The expenses charged to municipal revenues are $1,075,000 for administration, $1,225,000 for police, $700,000 for the support of municipal services,—such as street lighting and cleaning, parks, and cemeteries, and approximately an equal sum for pensions, subventions, and interest. Over $614,000 of this last item is repre

sented by interest and amortization of Havana city bonds. Nearly $118,000 is expended for jails, $125,000 for public improvements, and $40,000 for municipal charities.

MUNICIPAL DEBTS.

Of the 128 municipalities in the island at the close of the last fiscal year, only 36 had standing debts of any kind. Exclusive of the city of Havana, which had $10,000,000 (Spanish gold) six per cent. bonds outstanding, there was no bonded indebtedness, and the total interest charge was less than $5,000. Most of this was represented by censos, or permanent annuities charged against estates that had in one way or another become city property. Some of these annuities return to the municipal treasuries as income from the endowment funds of municipal schools and hospitals. The total floating debt of all the municipalities was $170,000, against which the local treasuries held $152,000 in cash and $542,000 in credits for back taxes and other unpaid revenues.

THE MUNICIPALITY AS A SCHOOL IN SELF-
GOVERNMENT.

The political capacity of a whole nation is demonstrated by its local more than by its general government. The Spanish immigrants in Cuba show greater talent for self-organization,judging by their clubs, labor unions, and cooperative societies, than the natives. Cuba might therefore appear less fitted than Spain to create a system of vigorous local autonomy. But we must allow for the reaction of the general upon the local government and for the communication of political ideals and methods from the United States. Both of these influences may have a far-reaching effect upon the municipalities, and is already predicted in the new constitution. Many abuses will certainly arise. The cacique, or boss, will flourish upon misappropriated funds and authority. It will be a slow task to instill in the mass of Cubans an intelligent conception of even primary civic obligations. This must be done principally through the concrete and local interests of the municipality, not only in Cuba, but in Porto Rico and the Philippines. Therefore it is not as an instrument of administration, for here its effectiveness has already been tested, nor as an organization for coöperative and social enterprise, for these functions are as yet largely undeveloped, but as a school for the elementary political education of a people that the Cuban municipality assumes new importance with the birth of the republic.

THE NEW PORTO RICAN LAW CODES.*

CONTACT OF THE SPANISH WITH THE AMERICAN LEGAL

IN

SYSTEM.

N the discussion aroused by our annexation of Porto Rico and the Philippines, public attention has been concentrated upon the form of government to be given to these new possessions. The unique character of the juristic questions arising out of our contact with the SpanishAmerican civilization seems to have escaped attention. The report of the Porto Rican Code Commission, which has just been issued from the Government Printing Office, throws an interesting light on the relation between the two systems of law, and furnishes the basis for a closer harmony between them. In order to judge of the commission's completed work we must consider the two reports, which have been issued almost simultaneously. The first commission,consisting of Joseph F. Daly, of New York; L. S. Rowe, of Pennsylvania; and Juan Hernandez-Lopez, of Porto Rico, -was appointed by President McKinley pursuant to a provision of the act of Congress of April 12, 1900. The term of this commission expired in April, 1901, when it was succeeded by a commission appointed by the Governor of Porto Rico. The personnel of the second commission was practically the same as the first, except that the Hon. J. M. Keedy was substituted for Judge Daly, and Dr. L. S. Rowe was made chairman of the commission.

The plan adopted by the first commission, as shown by the report, was to deal with the immediate and pressing reforms, without attempting a general revision of the Spanish codes. The second report, which covers the work of the commission from April 12, 1901, to January 1, 1902, and which is published by the Porto Rican Govern. ment in eight volumes-four in English and four in Spanish-contains a systematic revision of the ('ivil Code, the Penal Code, the Code of Criminal Procedure, and the Political Code. Most of the recommendations of the first report have been embodied in the codes prepared by the second. commission.

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The most important question to which the first commission addressed itself was the revision of the organic act of Porto Rico. The measure as drafted by Congress was in many respects fragmentary, especially in the sections dealing with the organization of the executive and judicial branches of the government. Congress evidently did not fully realize that, in a country with laws and traditions essentially different from our own, the organization of an administrative department cannot be effected by reference to institutions established in the other Territories of the United States. For instance, in the section relating to the attorney-general of Porto Rico, the Foraker Act provides that the attorney-general "shall have all the powers and discharge all the duties provided by law for an attorney of a Territory of the United States." The restricted duties of an attorney of a Territory are not sufficient to meet the requirements of a densely populated island accustomed to a system of administration under which the attorney-general is the head of a complex judicial system,-a kind of minister of justice. The same is true of the other heads of executive departments.

In the revision of the organic act the commission was compelled, therefore, to formulate with great detail the powers and functions of executive officers. On the question of the organization of the legislative branch of the government the recommendations of the commission are divided. The majority favors the introduction of a bi-cameral elective assembly modeled after the legislatures of the Territories. The minority advocates the retention of the present system,- -an appointive upper house and an elective lower house.

ROMAN LAW NOT DISCARDED.

As regards the system of private law, the recommendations of the commission possess a peculiar significance. In Porto Rico we have, for the first time, come into direct contact with the Spanish system. It is true, that in both California and New Mexico we find the Spanish law in force, but it soon gave way to the American system, and the influence of the Spanish inhabitants was rapidly overcome by the influx of im. migrants from the East and North. In Porto Rico, however, we have to deal with a densely populated island which, because of climatic con.

ditions, will never attract a large number of persons from the North. The system of law must, therefore, always remain in close harmony with the inherited ideas and traditions of a population essentially different from that which we find in the States of the Union. Both reports furnish ample evidence that the commission realized the danger of attempting to force upon the people of Porto Rico a new system of law which would be certain to arouse a feeling of distrust and resentment in the native population.

It is furthermore evident, from the commentary contained in the report, that considerable pressure was brought to bear upon the commission to sweep away the Spanish system at one fell blow, and to substitute for it the codes of one of the States of the Union. In this attitude toward foreign systems of law there is involved the most serious danger incident to the contact with civilizations different from our own. The training

of the American lawyer is in the common law. Little or no attention is given to the great body of civil or Roman law, which is at the root of the legal systems of Continental Europe and of the entire South American continent. This ignorance of foreign systems explains the feeling, so prevalent at the bar, that any system other than the common law is unable to meet the re

quirements of justice. We are not always

mindful of the fact that the Roman law exercised a marked influence on the development of the common law, and that during the last two centuries there has been a gradual approach of the two systems toward a common standard, especially in the law of commercial relations.

THE CIVIL CODE.

In the Civil Code, the points of contrast between the Spanish and American systems relate to the most delicate parts of the structure,namely, the law of inheritance and of domestic relations. The theory of the family evolved in the English system of jurisprudence, and upon which our law rests, is based upon the principles of individual liberty and individual responsibility. The father's legal obligation toward his children ceases at his death, just as his power over them terminates with their majority. Under the Spanish law, the principle of family. solidarity and parental authority is emphasized. The patria potestas, while greatly circumscribed, does not cease when the child becomes of age. The family as the social unit is the basic idea of the system, and in the logical development of this principle the obligation of the father does not terminate with his death. The children are given a legal right to a certain share in the estate, and can only be disinherited for certain

reasons specified in the law. It is evident that such a system, whatever its merits or defects, cannot he swept away without unsettling domestic relations. The commission has retained the feature of the Spanish law which gives to children the right to a minimum share in the estate of their parents. In the revision of other por

tions of the code the same conservative spirit has prevailed.

THE PENAL CODE.

In dealing with the Penal Code the commission was able to act with a freer hand in both the substantive law and in the law of procedure. The Spanish system, which was largely influenced by the earlier Italian codes, is out of touch with modern standards of criminal jurisprudence. It bears the earmarks of the period of class privilege, and, as applied in Porto Rico, many of its provisions presuppose the existence of slavery. Its primitive character is furthermore illustrated by the fact that, while offences against the person are treated leniently, offences against property are visited with a punishment both harsh and cruel.

The system of criminal procedure is, if pos sible, even more antiquated than the substantive law. It gives to the courts and the law officers of the government a measure of discretion in dealing with accused persons which leads to the worst forms of tyranny and oppression. The incomunicado, by which the accused is isolated and subjected to every device that cunning can devise in order to extract a confession, is the first step in the administration of justice. The extraordinary power and influence given to the district attorney, or "fiscal," tends still further to strengthen the position of the prosecution. In the actual conduct of the trial the accused is first put on the stand, and the attitude of the district attorney naturally places him in a position in which he must prove his innocence. The "presumption of guilt," of which so much has been said, is not to be found in the law itself, but rather in the position in which the accused finds himself by reason of the manner of conducting the trial.

In the revision of the Penal Code the commission evidently determined to bring the Porto Rican system into close harmony with American standards. The code submitted, which is now in force in the island, is constructed upon the same principles as the penal codes of California and Montana, which, in their turn, are based upon the David Dudley Field code. While the change is radical, it cannot be said to involve any danger to the orderly development of the legal institutions of the island. The only possible hardship involved-if such it be-is the necessity

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