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THE NEW PORTO RICAN LAW CODES.*
CONTACT OF THE SPANISH WITH THE AMERICAN LEGAL
IN 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. 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 Government in eight volumes-four in English and four in Spanish-contains à systematic revision of the Civil 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.
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 frag mentary, 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 requirements 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 responsi bility. 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 portions 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 " sumption 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
imposed on the native lawyers of acquainting themselves with a new code. To the people, as a whole, the new system cannot help but work great benefit, as it assures to the ignorant and helpless peon effective guarantees against the arbitrary acts of the officers of the minor judiciary.
THE POLITICAL CODE.
The fundamental and irreconcilable differences between the Spanish and American administra tive systems forced upon the commission the task of formulating a political code. In the early stages of civil government in Porto Rico, great inconvenience was caused by the uncertainty as to the relation of the Spanish law, which was continued in force by the Foraker Act, to the new administrative system introduced by the establishment of civil government. The political code prepared by the commission, which, with important modifications in the chapters on elections and local government, was adopted by the Legislative Assembly at its last session, covers the entire field of administration. The subjects treated are: Jurisdiction over Persons and Property, Citizenship and Domicile, the Political and Judicial Divisions of Porto Rico, the Legislative Assembly, Executive Officers, Judicial Officers, General Provisions Relating to Different Classes of Officers, Nominations for Insular and Local Officers, Elections, Local Government, Public Safety and Police, Education, Highways and Roads and Public Works, Revenue and Taxation, Miscellaneous Provisions, and the Insular and Local Civil Service.
O corporal exercise is better adapted to promote health, none more reluctantly practiced, than walking. Americans will patiently suffer the indignities that public vehicles inflict rather than move their feet. They use cars which are close in winter, draughty in summer, to bring them from airless workshops, where they have passed their day, to spend the night in unventilative homes. Ask for directions in any city and you are carefully told what trolley will convey you. When you inquire how to reach your destination afoot, the same courteous stranger is apt to leave you without reply, but with a suggestive shrug of his shoulders; the man who persists in walking where he can ride is considered a fool.
The tortures endured by frequenters of the
The most serious question that presented itself was involved in the possibility of assuring to the towns a larger measure of local self-g -government. The Spanish system is one of extreme centralization, the Governor-General and his agents maintaining minute control over local officials, and to a very large extent directing local policy. No. opportunity was therefore given for the develop. ment of that local initiative and energy which is indispensable to the smooth working of a decen. tralized system.
The general principle which has guided the commission throughout the formulation of this code is to place the initiative and the primary responsibility for the performance of local services upon the town officials, but at the same time to reserve to the central government sufficient control to guarantee a definite minimum of efficiency. The code recognizes the fact that the qualities requisite for the successful working of a system of self-government are not of spontaneous growth, but are the result of painfully acquired experience, and of the gradual strengthening of national character.
AMENITIES OF CITY PEDESTRIANS.
BY LOUIS WINDMÜLLER.
The fact that the commission, while proceeding in a conservative spirit, has nevertheless succeeded in bringing the Spanish system into harmony with American standards, is at ribute to the elasticity of our institutions. The test is one that we shall have to meet on a far larger scale in the decades to come, and it is well that in our first contact with the new situation the conditions, both political and economic, have been so favorable to a successful issue.
trolleys of cities during "rush" hours are excruciating; many passengers could lessen by their absence the pressure, if they would walk all reasonable distances. They rather permit insolent conductors to elbow and jostle them, in a crowded car which jerks at every stop and turn with such violence that hapless strappers are huddled together, or thrown on the knees of compressed sitters, while they must listen to the familiar ejaculations: "Move forward," "Step lively," and "Fares." The pedestrian, independent of motors, strides over comfortable sidewalks and looks with complacent pity on the, often slowly, passing victims of their indolence.
Avenues like Commonwealth" in Boston, "Delaware" in Buffalo, which are beautified by art or nature, are practically deserted, while the
"Champs Elysees" in Paris and the "Thiergar ten Strasse "in Berlin are frequented by appreciative promenaders. Our parks,-"Central" in New York, 'Lincoln" in Chicago, and Fairmount" in Philadelphia,-are chiefly patronized on fine Sundays, by persons who at other times are confined in tenement-house districts. In those retreats they refresh their eyes by the verdure of vegetation and their brains by freedom from agitation. City lungs are a blessing to the poor, who would not find their equal on country highways, if they could reach them.
We may enjoy the beauty of virgin nature in secluded forests when we climb mountains; but the gratification becomes tiresome when we find nobody to share it. Even Mr. Burroughs has been obliged sometimes to content himself with the company of his faithful dog. A comrade is always welcome but not indispensable in streets, where the pleasure of exercise is heightened by ever-changing sights and sounds. The most harmonious cries of street venders are less sweet than the melodies of singing birds; flowers that greet us from windows of houses lack the fragrance of nature. But I consider the melodious chimes of city churches preferable to the thunder of Niagara, and the friendly look of a charming woman to the vista from Pike's Peak. Dickens found in every street of London a subject worthy of description by his marvelous pen; personal observation enabled Victor Hugo to delineate the old streets of Paris, as if he had lived at the time of Quasimodo.
Most Americans dress on streets as they do at home. Even in Washington, uniforms are conspicuous by their absence. I remember that policemen and railwaymen objected against donning such livery" until public-spirited citizens, to demonstrate that it would not degrade them, wore it at public functions. But on the streets of Continental Europe uniforms are in evidence wherever you go, and of the young wearers too many are inclined to swagger.
It is amusing to watch the promiscuous variety of teams that pass through our thoroughfares,— beer wagons and trucks, ambulances and fire engines, freely intermingle with autos, and in many streets predominate; while in fashionable thoroughfares and parks carriages are in the majority. Vehicles used for business purposes are seldom prohibited in a country ruled by business men. On Rotten Row" in London, the "Cascine" in Florence, a hired hack is not tolerated. Private conveyances and riders absorb the driveways, promenaders the sidewalks.
In no other cities do we find buildings of such different architecture as on the busy streets of Chicago and New York. Squatty houses, built
long ago for residences, have been altered into warehouses, or are being demolished to make room for modern structures; interplaced between them and the storehouses of a past generation, often overshadowing them, are the tall buildings called skyscrapers, that give to narrow streets, where they prevail, a gloomy appearance and a baroque aspect to the rest. The mo notonous uniformity of brownstone and brick houses in residential thoroughfares is gradually changing, by the erection of a variety of "American basement" dwellings of a modern and more cheerful exterior.
To "dress" windows of retail shops with seductive taste, an accomplishment the practice of which has always prevailed in Europe, has become more general here; a small dealer is wont to place the best part of his stock with exquisite consideration of color and symmetry on revolv. ing glasses in his showcase, before the astonished eyes of a passing stranger, and thus allure him to enter. The signs which French shopkeepers display are more attractive than ours. Lately shrewd Parisians have returned to the ancient habit of employing artists to design, sometimes to execute, them. This gives to ambitious painters an opportunity to demonstrate the skill of their brush, and makes the thoroughfare more attractive.
The street of one city differs from every other; and almost every one has, to the pedestrian, a peculiar charm of its own. We must not look from the tops of 'buses nor from the windows of cars if we want to know and appreciate an interesting way, we must measure its length with our steps. On Market Street, San Francisco, we meet the original types of our slopers, and freeze on the shady side while we broil in the sun on the other. On Canal Street, New Orleans, we admire the fashions and gait of Creole beauties, and wonder at ships that lie on the elevated Mississippi, above the surface. The "Nevsky Prospect," in St. Petersburg, is crowded with drojkies rapidly driven by unkempt, unwashed Tartars, dressed in long kaftans. On the "Grande Rue de Pera," the only street in Constantinople where we can walk with a certain degree of comfort, we meet almost every human type of the Orient and Occident; but encounter not as many canines as formerly, nor as many as continue to hover on the crooked alleyways of Stamboul.
Method will add to the satisfaction of walking. When I pass an organ or a band of music, I love to measure my steps by the notes I hear; where none are audible, I rehearse those I happen to remember myself. Half a century ago, when I returned with my class in rank and file from an
outing, we kept step to the tunes of some favorite college song, like "Guadeamus; " I have continued this habit, humming any tune adaptable to my step, like "Yankee Doodle" and the stirring battle hymn of Julia Ward Howe. Going with ease, at the rate of three miles an hour, I breathe through my nose to filter the air that enters my lungs and give full play to my swinging arms. I exhale on the second double step the air I inhaled on the first, and lean the back of my neck against my shirt collar, to look into a blue sky or gray clouds, when I veer my eyes from the turmoil of the immediate surroundings.
The Latin advice, Post coenam stabis seu passus mille meabis," I modify by resting after every meal. It is pernicious to strain an overloaded stomach, and I would rather go without food than without walk. Obstacles increase the pleasure, vexations cannot dampen the ardor for the luxury I covet most. Rain or shine, in every degree of heat or cold, I go, when feasible, several hours a day,-twice as long when my spirits are depressed. In warm weather it may increase perspiration, but that is a discomfort which must willingly be borne. H. W. Beecher said: "There are many troubles which you cannot cure by the Bible or hymn book, but which you can cure by perspiration and fresh air." External gymnasiums are scarce; golf and most other outdoor plays require some exertion of the brain. But when we walk we can give the mind a complete rest, and graduate our effort according to our strength. Let those who are feeble walk, at an easy gait, half a mile,-when their muscles strengthen, a mile,—and they will soon find the exercise a pleasure instead of a penance; it will dispel the gloom which they hugged, and their aches will vanish. Air is man's element; he has no more excuse to refrain from walking through it than a fish would have from swimming in
tertained free of charge in the hostelry of his craft. Not all were as pretentious as the "Hotel des Brasseurs," the brewer's hall on the market place in Brussels. But all were equally hospitable. When work had been found and finished, he continued his journey with a light heart; as soon as he had acquired sufficient experience and saved enough money to marry, he established himself as "Meister, master of his trade.
A banker, troubled with gout, was obliged yearly to go to Saratoga. Having lost his fortune, he became a broker to support his family; going from house to house, from morning until night, he solicited the orders of his former associates. This proved to be a more efficient cure than water; the gout disappeared, he became healthier and stronger than he had ever been. Another friend, who daily walked to his town office, retired with a competence from active business. He built a manor house on a vast estate, and filling his stables with horses and carriages, he exercised his roadsters to keep them in good condition, but failed to exert himself. Rolling wherever he wanted to go on the luxurious cushions of his vehicles, his blood ceased to circulate, and he lay down to die.
The common excuse of those who preach bur fail to practice exercise is want of time; in pursuit of fortune or power they forget their well-being and shorten their days more than they would require for the proper care of their bodies while they live. Pedestrians should combine and form federations like the " League of American Wheelmen," for mutual protection and encouragement.
Successful authors, men of thought, have been fond of the practice: Walter Scott walked fifteen miles a day, James Russell Lowell never rode where he could walk, William Wordsworth found his promenade more exhilarating than old port. The chief editor of a large daily newspaper marches five miles every night to his distant home, when, at 1:30 in the morning, he leaves his office. President Roosevelt is an ardent walker.
Habitual walking, combined with diet and other corporal discipline, promotes digestion and inhibits dyspepsia. Obesity, with its consequences, has no terrors for a pedestrian; he can never be troubled with paralysis or apoplexy.
For every ailment, activity in the open air is a more effective remedy than Christian Science, more reliable than patent medicine, and more soothing than physicians' advice. Fitting a sound body to a sound mind, it pacifies a ruffled temper and clears the tired brain of cobwebs.