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The Old Roman Law and a Modern American Code [I]

Drake, Joseph H.

3 Mich. L. Rev. 108 (1904)

Codification

THE Civil Code of Porto Rico, our latest Roman American code, gives interesting proof of the fact that the two systems of law, the Roman and the English, which control most of the nations of the civilized world and their dependencies, are, in their essence, but slightly different enunciation’s of the same principles of natural justice.

The parent of the Civil Code of Porto Rico 1 is the Spanish Civil Code,1 in force in Spain since May I, 1889, and extended to Cuba, Porto Rico, and the Philippines on July 31, 1889.

The Spanish Civil Code is the result of the agitation of nearly a century. The Novisima Recopilacion, of 1805, showed its insufficiency almost as soon as it was published, and the usage of Spanish lawyers has been to go back of it and of the Nueva Recopilacion, of 1567, to the Siete Partidas of the thirteenth century. This last mentioned code, the work of the weak King but great legalist and literateur, Alphonso X the Learned, shows not only the legal genius of its maker, but also the fact that it belongs to the time, contemporaneous with our own Bracton, when the great revival of juristic learning, beginning with the school at Bologna, was influencing the legal thinking of all Europe. Three out of the seven parts; namely, Partidas III, V, and VI, are in the main Roman law.1 Back of the Siete Partidas, a long jump of six centuries, over the period of national disintegration produced by the conquest of the Saracens, brings us to the Fuero Juzgo, the next great legal document that may be said to possess authority for the nation as a whole. This is confessedly an attempt at a codification of the law for the amalgamated state of Goths and Romans, and aims to bring under the pro-

1 The Commission appointed pursuant to the Act of the Legislative Assembly of Porto Rico, of January 31, 1901, to compile, revise, and codify a system of law for Porto Rico, consisted of Commissioner L. S. Rowe, Chairman, and Commissioners J. M. Keedy and Juan Hernandez Lopez. The revision of the Civil Code was entrusted to Commissioner Lopez. The revision was drafted in Spanish and the English text is a translation of the original. This translation is included in the Revised Statutes and Codes of Porto Rico, Published by Authority of the Legislative Assembly of Porto Rico, San Juan, Porto Rico, 1902. This is accessible to English readers in the translation published by the Division of Customs and Insular Affairs, of the war Department of the United States, in October, 5899, under the title, Translation of the Civil Code in force in Cuba, Porto Rico, and the Philippines. The references in this article are to this translation, when the English is cited; the references in Spanish are to Derecho Civil Espailol, por D. Nicholis de Paso y Delgado. The Spanish Civil Code is also translated in Walton’s, The Civil Law in Spain and Spanish America, which gives, too, a very interesting and instructive account of the Spanish legal system. Cf. Walton, op. cit. pp. 76, 77-

OLD ROMAN LAW AND A MODERN CODE 109

visions of one law the two peoples, who had hitherto, on the principle of “personality” in law, looked to the old Code of Euric of the fifth century, in cases involving Gothic defendants, and to the Code of Alaric II, of the beginning of the sixth century, for those cases in which Roman defendants were concerned. The provisions of Roman law in the Fuero Juzgo carry us back to the Code of Alaric, and thus to the classical period of Roman law, for the Code of Alaric contained a considerable portion of the Institutes of Gaius, written in the second century of the Christian era, and used as an introductory text book by Roman law students. It may not be unprofitable to compare, on the one hand, the modern Spanish Civil Code with its remote classical ancestor, the Institutes of Gaius; on the other, to note how comparatively slight have been the changes necessary in the Spanish Civil Code, a derivative of the Roman law, to fit it to take a place as a territorial code of one of the integral parts of our American Republic, with its Anglo Saxon law.

Sir Henry Maine, writing in 1883, says, “According to general agreement of modern writers on jurisprudence, the Roman distribution of law into Law of Persons, Law of Things, and Law of Actions, must be regarded as now exploded.”

At the very time when Maine was writing and publishing this essay, the Spanish jurists were working on their codification of the law, published in 1889. How much they were influenced by the method of treatment of the Code Napoleon and how much by the old classical precedent, may be said only by the codifiers themselves. It is sufficient for our purpose to note that they have followed the time honored method of presentation laid down by Gaius, varied in some minor particulars.

The first book of the Spanish Code treats of Persons, the second of Property, the third of Different Ways of Acquiring Ownership, and the fourth of Obligations and Contracts. It will be seen that the first book corresponds to the jus ad personas of Gaius, and the last three to the ius ad res. The ius ad actiones of Gaius has been relegated by the Spanish jurists to a separate Code of Civil Procedure, published in 1881. This classification of the substantive law shows a marked resemblance to that of the Code Napoleon, which in its three books treats, respectively, of Persons, Property, and Modes of Acquiring Property. The placing by the Spanish legalists of Obligations and Contracts in a separate book, coordinate with the other main divisions of the Code, is justifiable on the score of the importance of that subject in modern law, although these topics are considered by the Code Napoleon among the methods of acquiring property. Early Law and Custom. p. 364.

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5 The Spanish jurists have, too, by this method of presentation thrown into proper prominence the useful distinction between ius in rem and ius in personam; that is, between the right to direct control of a thing, in ownership and its modifications; and of indirect control of a thing, as given by contract and other forms of obligation. The Porto Rican revisers have wisely followed the Spanish instead of the French model in this particular. That this persistence of the old Roman classification is a logical survival and not a mere historical descent to us of an old scheme of arrangement, seems plain enough, if we can get clearly before us just what the classification means.

In the words of Judge Hammond,6 “In every legal rule you study, you will find a person as the subject of the right given by it, a thing as its object, an action as a remedy or means of enforcement.” If the variation in personality affects the legal right involved, the rule will naturally be stated under the Law of Persons. If the person is the normal person and the variation is in the object of the right, the rule of law will be found under the Law of Things. These two bodies of legal rules state the whole body of substantive private law, defining antecedent rights, while all remedial rights find expression in the law of actions; i. e., in a code of procedure.

This famous classification of law may be older than Gaius,1 but whether this is the case or not, it certainly belongs to a comparatively late period in the history of Roman law, when the legal system has grown into a body of equity, in which the aim, in theory at least, is to treat all men alike before the law. The law of things thus becomes the most important part of the law, ‘because it is in this field that we are dealing with the unit person. It is the Law of Equals, as Poste says,5 or the Law of the Normal Person of Holland.9

The history of the Spanish codes shows that the old principle of classification is after all the most useful for the treatment of a highly developed system of law, at least. The Institutes of Gaius start with this classification, the Civil Code of 1889 returns to it. It may be objected that a book of institutes is not a code. But so far as the classification is concerned they fall into the same category. The object of the Institutes is to classify on the simplest possible

The same course is followed by our best American representative of the French Code; namely, the Civil Code of Louisiana, which though Spanish in substance is confessedly French in form. Cf. Merrick, The Laws of Louisiana and Their Sources, in Am. Law Reg. 29, pp. 1-20. Sandar’s Justinian, Introduction to the American Edition, p. xxxv. Cf. Holland, Jurisprudence, 8th Ed., p. sas, note 3. Gali Institutiones, p. 40. Op. cit. p. 122.

OLD ROMAN LAW AND A MODERN CODE III

plan the leading principles of a system of law, for the benefit of the beginner in the study of the subject. The modern code attempts to accomplish the same thing for the somewhat different purpose of making the system more easily comprehended and more surely applied by the courts. The variation in the method of classification of the earlier Spanish codes is a striking proof of Maine’s10 argument that the court of’ justice overshadows other ideas and considerations in the minds of code makers in early or undeveloped societies. The simple classification of Gaius is not used in the first composite code of the united Spanish peoples, the Fuero Juzgo of the seventh century. At a time when men have fallen away from the high civilization of the classic Roman period to the semi-barbarous stage, immediately succeeding the Teutonic invasions, the so-called legal order of the Code of Theodosius and of the Digest and Code of Justinian is followed, instead of the logical system laid down in the institutional treatises. The Fuero Juzgo follows the primitive method of putting procedure early in the code. In a similar way the subject of procedure in the Siete Partidas precedes the discussion of persons and of things.1 Our own Bracton, who is a contemporary of Alphonso the Learned, gives indication of a similar primitive character of the English law at the time when he wrote his De Legibus et Consuetudinibus Angliie. Although this book is arranged on the principle of the Institutes, because Bracton .is closely following his model, the Summa of Azo, which is based on the Institutes of Justinian, the importance of judicature is shown by the fact that the Law of Persons occupies but seven folios of Bracton’s treatise, and the Law of Things, ninety-one, while the Law of Actions extends to three hundred and fifty-six folios.’2 In the last Spanish codification the Law of Procedure is entirely divorced from the substantive law and issued separately,’1 and the Law of Things shows a large preponderance over the Law of Persons in the Civil Code.’4

The preliminary title of the Porto Rican Code, on the effects and general application of laws, omits all provisions of the Spanish Civil Code which apply to the local situation in the Spanish peninsula, thus disposing at once of the many difficult questions that have troubled the Spanish legalists in regard to the relations of the Code to the foral laws. In both codes “laws shall not have a retroactive

10 Early Law and Custom, p. 381. Walton. op. cit. p. 76. 11 Cf. Pollock and Maitland, History of English Law, and Ed., vol. I, p. 219. 13“There is a translation of the Code of Civil Procedure made by the War Department of the United States, Division of Insular Affairs, January, 1901. 14 The proportion is about four to one.

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effect unless they expressly so declare,” but the American code adds that “the retroactive effect of a law may not operate to the prejudice of rights acquired under previous legislation,” a provision which brings the Code into line with the decision in the Dartmouth College Case. The Louisiana Code had solved this difficulty by forbidding anything but prospective legislation.’1 The old Blackstone rule that the repeal of a repealing act revives the act repealed, has been reversed by the insertion of the negative before the word “revive.”8 The provisions in regard to the application of laws are similar in the two codes, except that the Spanish provisions as to legal and testamentary succession, and as to the relation of the Civil Code to the foral law have been omitted from the later code.” The revisers have adopted almost verbatim from the Louisiana Code the rules for interpretation of law.’5 Undoubtedly Louisiana decisions, in which these rules have been applied, will furnish a model for the Porto Rican courts, that in this century are to repeat the experience of Louisiana courts in the past century, in adapting a Romano-Spanish code to an Anglo-Saxon environment. The rule of interpretation that, “the most effectual and universal method of discovering the true meaning of the law, when its expressions are dubious, is by considering the reason and spirit thereof or motives which induced its enactment,” 5 will undoubtedly carry Porto Rican courts back into the more or less remote history of Spanish law, and this, too, in spite of the final provision of the Porto Rican Code which “repeals and leaves without force all other laws or bodies of law which directly or indirectly are in conflict with the provisions of the revised Civil Code.” Such has been the experience of Louisiana legalists10 and of all their predecessors who have dealt with codes, so far back as legal memory goeth.2” The first book of the Porto Rican and Spanish Civil Codes, on the Law of Persons, corresponding to the ius ad personas of Gaius and Justinian, and to the Relative Rights of Private Persons of Blackstone, discusses the few variations from normal personality

~5 Civil Code of Louisiana, Art. S. The citations are from Merrick’s Revised Civil Code, sgoo. ~ P. R. Code, Sec 6; cf. Blackstone, mt. Sec. 3. ‘I P. R. Code, Sec. ~-ss; cf. Sp. Code, Art. 6-se. 15 P. R. Code, Sec. s~-ao; cf. La. Code, Art. 13-20. 55 P. R. Code, Sec. iS—La. Code, Art. IS. ~5 See Am. Law Reg., vol. 29, p. 5. “~ The classic instance of the futility of attempting to prevent further growth of law through interpretation is found in Justinian’s prohibition of any comment on his work, ,zemo * * audeat conz~nentario~r isdem legibus adszectet’e” (cf. de coot. dig. 21), and its comparison with the myriads of books written by way of commentary upon the Digest.

OLD ROMAN LAW AND A MODERN CODE I

13 that are still of significance in a modern society; namely, those in which special provisions are made for the advantage of persons laboring under natural disability to perform legal functions with safety to themselves. We find here the subjects of Husband and Wife, Parent and Child, and Guardian and Ward.

The subject of Master and Servant, which Blackstone treated in his rights of persons, after the analogy of the subject of servitus in his Roman model, has been assimilated to the law of contract in the modern Spanish system as well as in the post-Blackstonian English law. It may be remarked in passing that Blackstone’s “public persons” do not appear in the Civil Code at all, as the subject matter of Blackstone, Book I, chap. 2-13, is found in the Political Code. This is due to the difference in the schemes of classification.

Both the Roman derivative codes have retained the classical subdivision of law into public and private law, as the most fundamental, while Blackstone, by starting with antecedent and remedial rights, or as he calls them, “rights” and “wrongs,” as his initial principle of classification, is enabled to consider the public person along with the private person under his Rights of Persons.

The first book of the Porto Rican Code has a much more exhaustive treatment of the artificial person than has the Spanish Code. The great importance of the corporate personality in modern American law, so far as classification is concerned, has thus had the effect of increasing the bulk of our law of the abnormal person, though the subtractions from the Spanish law of persons in the Porto Rican Code about compensate for this increase. The corporation as such has received but scanty consideration in the Spanish Civil Code. Even in the Louisiana Code there are but twenty sections devoted to it, but in the Porto Rican Code we have a complete corporation act. The chapter on Domestic Corporations is substantially the New Jersey Act, with a few variations, made apparently in most instances to bring the Porto Rican law into accord with the interpretations of the New Jersey Act by the courts, subsequent to its enactment. There are a few changes that seem to have some significance; for example, Section 9 of the New Jersey Acts reads, “The articles of incorporation * * * shall set forth any provisions which the incorporators may choose to insert * * * for creating, defining, limiting, and regulating the powers of the corporation, the directors, etc.” The corresponding section of the Porto Rican Code reads, “for creating, defining, limiting, and regulating the powers of the corporation directors.” The provisions in the Porto Rican Code as to the liability of directors controls them more efficiently than they are controlled under the New Jersey Act.

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Section 62 of the Porto Rican Code provides that directors authorizing by their votes a corporate indebtedness in excess of the value of the capital stock, or of the value of the property and assets of the corporaton, shall be jointly and severally liable for the amount of such indebtedness. This provision does not ‘appear in the New Jersey Act, and shows a marked similarity to the section of the Massachusetts law on the same subject.22 The chapter on Foreign Corporations in the Porto Rican Civil Code is evidently not taken from the corresponding part of the New Jersey Act, ‘while the chapter on Cooperative Building, Savings and Loan Associations shows the influence of the New York and of the Pennsylvania laws on the same subject. The rather elaborate distinctions between Spaniards and foreigners, and the subject of domicile in the Spanish Code, find no parallel in the Porto Rican Code, unless Section 23, of the Preliminary Title, defining tersely the expression “citizen of the United States” may be so considered. The consideration of these themes has been transferred by the revisers to the Political Code.21 The consideration of the subject of “Absence” has been transferred from a place immediately following parental authority, in the Spanish Code, to a point after the subject of corporations in the new code. The revisers seem to have been influenced by the ‘example of the Code Napol6on and the Louisiana Code in making this change, but it is nevertheless of doubtful expediency.

The Spanish legalists apparently had in mind the concept so much emphasized by German jurists of the present time, that legal institutions are organic growths, and should 1e treated in the organic order; i. e., we should have an account of the birth, life history, and death of each institution, presented in their chronological sequence. The titles on Marriage, Divorce and Nullity of Marriage constitute a treatment of the subject much simpler than the “Act Regulating Marriages and Divorces,” proposed by the Commission in its first Report.24 It also differs materially, and for the better, from the corresponding titles of the Spanish Civil Code.

The distinction between civil and canonical marriage is done away with. Marriage is defined as, “a civil institution originating in a civil contract,” which adds to the definition of marriage, as given in Blackstone25 and in the Louisiana Code,26 the qualification of this definition laid down in

22Mass. Rev. Laws (1903), chap. 110, sec. s8, pp. 11-35. 23 Cf. Pol. Code. Title II. 24Report of the Commission to Revise and Compile the Laws of Porto Rico. Washington: Government Printing Office. 1901. Vol. II., p. 627, f. 25Commentaries, Book I., Chap. xv., Sec. I. 26Civil Code, Art. 86.

OLD ROMAN LAW AND A MODERN CODE

“5 Maynard vs. Hill.27 A book of marriages, open to inspection without charge,28 is provided for public registration of marriages. Parties desiring to contract marriage must present themselves to the municipal judge of their domicil and be examined as to their capacity to contract.10 Within ten days after such examination, the municipal judge shall issue a license, the license to be addressed to any judge, or priest, or minister of religion authorized to celebrate marriage. A fee of one dollar shall be paid for issuing a marriage license10 This is the only fee mentioned in the act. It is a matter of common notoriety that under the Spanish regime the costs of a legal marriage were so excessive that many couples were forced by poverty to live in a state of concubinage. As a compensating feature of the law under the new regime, it may be noted in this connection that the provision for the legitimization of children and for mitigating the hardships of illegitimacy are not nearly so elaborate in the Porto Rican as in the Spanish Civil Code, since the likelihood of forcing illegitimacy by harsh provisions of the law is now done away with. The husband shall be the administrator of the conjugal property except when otherwise stipulated, although the wife may purchase necessaries for the family at the expense of the conjugal property.1” The grounds for divorce are eight in number, including cruel treatment and abandonment.12 A residence in the island for a year preceding the action is necessary, unless the act on which the suit is based has been committed in Porto Rico, or while one of the parties to the marriage resided there.11 The law of parent and child is included in the three titles, Paternity and Filiation, Support of Relations, and Patria Potestas. The title on Paternity and Filiation is based on the corresponding title of the Spanish Civil Code, though there are a number of variations from the parent code. The most striking perhaps is the one already mentioned14 in regard to the less intricate provisions for illegitimacy in the Porto Rican Code. The consideration shown in Spain for those of illegitimate birth is said by Burke11 to have its historical origin in the social needs of the times when the struggle between Christian and Saracen for possession of the peninsula was going on. The Saracens, with their practice of polygamy; had the

“Sec. 136. “Sec. 137. “Sec.138. Sec.159. “Sec. 164. “Sec.65. “Cf. p. 31 History of Spain. Vol. I. p.374.

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advantage of the monogamous Christians in the production of fighting men, and a relaxation of the strict rules as to the relation of the sexes ensued. The transfer of the chapter on Adoption to this title of the Porto Rican Code is apparently due to the influence of the Louisiana Code, “which has considered it under this caption. The treatment of it by the Spanish Code under the title of Parental Authority seems more logical. The title on Support of Relations is an almost verbatim copy of the Spanish Code. It does not appear in the French Code nor the Code of Louisiana. Similar provisions are found in the Novisima Recopilacion and the Siete Partidas.18 Support is defined as being the furnishing of necessaries. Those who may be called upon to furnish support are in their order: (i) Husband or wife. (2) Nearest descendant. (3) Nearest ascendant. (4) Brother or Sister. The amount of contribution of two or more persons owing, is in proportion to their respective estates. The recipient may be paid cash or given maintenance in the home of the one obliged. The right to receive support may not be relinquished or transmitted to another.17 The obligation to give support terminates with the death of the recipient, his becoming able to support himself, misbehavior on his part sufficient to warrant disinherison, if necessity for support depends on wrong conduct, or lack of application on the part of a descendant who is a recipient; also if the fortune of the donor has become so reduced as to make his contribution impossible.18

The changes in the nature of patria potestas in the new code seem to have been made in accordance with two principles: (1) To make the power of the mother over the children more nearly equal to that of the father. (2) To reduce somewhat the severity of parental control over the child. In the Porto Rican Code the patria potestas belongs to the father and mother conjointly, though in cases of differences of opinion the decision of the husband shall prevail in all cases relating to family affairs.19 The administration of the property of the children belongs to the father and mother, according to the Porto Rican Code, while the Spanish Code says, “the father and, in his absence, the mother has authority over their legitimate children.”40 By either code the power of the parent over the child extends to the right of moderate chastisement. The Porto Rican Code is a copy of the Spanish Code in regard to the effects of the patria potestas over the property of the children, except that the

ss Cf. Paso y Delgado, Derecho Civil Espaflol, p. 103. ~‘ P. R. Code, Sec. 212-219; cf. Sp. Code, Art. 142-151. 3Sp~ R. Code, Sec. lb; cf. Sp. Code, Art. xs~. ~ P. R. Code, Sec. 222. “P. R. Code. Sec. 224; cf. Sp. Code, Art. isa.

OLD ROMAN LAW AND A MODERN CODE

“7 Spanish Code provides that, “the father and, in his absence, the mother is the legal administrator of the property of the children ;“ and that the Porto Rican Code gives the usufruct of the property of unemancipated children to the party in whose favor the decree of divorce is allowed.4’ Both codes provide that the ownership of property acquired by the child through his own efforts vests in him, and the usufruct thereof in the parents. On the other hand, that the ownership and usufruct of what the child acquires with the capital of his parents, vests in the latter.42 This impractically the Roman law, as left by Justinian, of the peculium pro fectitium and pecnlinm adventitnm.41 In both codes is found the prohibition of alienation of real property of the child, in which the parents have the usufruct, except after authorization from the judge of the domicile.

The peculiar distinction between tutorship and curatorship belonging to the old Roman law, and still retained in the Corpus Juris Civilis, is an outgrowth of the theory of guardianship held by the ancient Romans. According to this theory the guardianship of male orphans was not designed for the protection of their person and property during the period of intellectual incapacity resulting from nonage, but was a device for imitating the patria potestas until the youth became physically capable of becoming a parent himself.44 It ended with pubescence of the male child, fixed formally by the law at the age of fourteen. But at a very’early period in the history of Roman law, usually placed as early as the time of Plautus,45 it became customary to place young men under curators until the close of their twenty-fifth year. These were appointed on the modern theory of protecting the individual in his legal transactions during the period of intellectual weakness. The theory of tutorship is that it supplements the imperfect juristic capacity of the ward, so as to render him capable of acting himself. The curatorship, on the other hand, enables the guardian to act in the management of the ward’s property, in place of the ward. “The curator is at the same time the guardian and the representative of his ward.”48 In all modern systems, in which the importance of the patria potestas is so materially reduced, even this survival of its ancient value, which we find in the Corpus Juris Civilis, has altogether disappeared. This peculiar distinction does not appear in the Code Napoleon nor in

“P. R. Code, Sec. 232; cf. Sp. Code, Art. 159. ~ P. R. Code, Sec. aas-aa6; cf. Sp. Code, Art z6o, 161. ‘1Inst 2, g, x; Cod. 6, 61, 6. “Cf. Maine, Ancient Law, p. ~ ‘~ Plant. Pseud. Act. I., Scene 3: fez me perdit quinavicennaria. 41 Sohm, Institutes, p. 510.

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the Louisiana Code. In the sections where tutor is contrasted with curator, the curator is appointed for the preservation of the rights of an unborn child, and, after the birth of the child and appointment of a tutor, such a curator becomes the under tutor,47 or the deputy guardian.48 These distinctions between tutela and cura as applied to inipuberes and puberes,, and also the quibble of Roman legalists as to whether guardians are given primarily to the person and secondarily to the property or vice versa, have been swept away by the modern Spanish Code,49 and tuteics is defined with. reference to its object as being, “the custody of the person and property or only of the property of those who, not being under the parental authority, are incapable of taking care of themselves.”10 Two peculiar institutions of the Spanish Civil Code, the Family Council5’ and the Protutor,51 were borrowed by the authors of the .Project of 1851,51 from the Code Napoleon, according to the authority of Paso y Delgado.54 These have been dropped from the Porto Rican Code, but some description of them here may not be out of place. The family council is composed of the persons whom the father, or the mother, in a proper case may have designated in the will, and, in absence thereof, of the male ascendants and descendants, and of the brothers and husbands of the living sisters of the minor or incapacitated person, whatever their number be. If it is less than five, this number shall be made up with the nearest male relatives of both the paternal and the maternal lines, and should there not be the full number of relatives, or any, the municipal judge shall substitute them with honest persons.19 The family council is entitled to appoint a protutor when he has not been appointed by those who have a right to elect a guardian for minors. The family council and the protutor together perform in general the functions of our probate or surrogate courts, in acting as a check on the guardian, and conserving the interests of the ward whenever they may be at variance with those of the tutor.58 Majority in the Spanish Code commences on attaining the age of twenty-three years. The Porto Rican Code has changed this to the customary American standard of twenty-one years of age. The Porto Rican Code has retained the continental usage of requiring a registry of civil status, including the records or entries of births, marriages, emancipations, acknowledgments and legitimations, and deaths, to be in charge of the municipal judges in Porto Rico.17 UNIVERSITY OF MICHIGAN. JOSEPH H. DRAKE. [TO BE CONTINUED.]

Civil Code of Louisiana, Art. ada. ~‘ Code Napoleon, Art. 393. ~ Cf. Paso y’ Delgado, Derecho Civil Espailol, p. 527. ss ~ Code, Art sgp—P. R. Code, Sec. 237. ~ Sp. Civil Code, Art. 293-3 73. ~ Sp. Civil Code, Art. 233-236. ‘~ See ‘Walton, op. cit. p. sop. ~4 Derecho Civil Espafiol, p. 130, 151. ~5 Sp. Code, Art. 294. ~‘ Cf. Sp. Code, Art. 236.

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The Old Roman Law and a Modern American Code [II]

Drake, Joseph H.

3 Mich. L. Rev. 185 (1904)

Codification

In Book II, on Property, Ownership, and its Modifications, the Porto Rican Code follows closely its Spanish prototype. The main variation in general outline is the omission from the American code of the special property in minerals and in intellectual productions.

There is a chapter on “General Principles” introduced into the first title of the Porto Rican Code which seems particularly open to the criticism of definitions as such, expressed in Merrick’s Civil Code of Louisiana.58 The addition to the definition Qf the word “Property” that, “it is likewise relative to the word ‘Things,’ which is the second object of jurisprudence, the rules of which refer to persons, things and actions,” does not seem especially helpful. That the classification of “things” into “common” and “public,” and “corporeal” and “incorporeal” things, though resting on good old classical precedents,60 is not very illuminating to the modern legalists, seems evident from the fact that they were passed over in silence by the codifiers of the Code Napoleon and of the Spanish Civil Code, though revived in the Louisiana Code and transferred thence to the Porto Rican Code. The use made of the term “incorporeal things” in Sections 336 and 343 is gratuitous, as these sections are borrowed from the Louisiana Code,6’ and the Louisiana Code in the first instance describes the thing, without using the term, and, in the second, the term may be omitted without impairing the clearness of the passage. The simple definition of things movable in the Spanish Code, by exclusion of things described under immovables, with the addition of “incomes, pensions, alienated offices, contracts for public services, and mortgage loan bonds or certificates,”62 as belonging in the category of movable things, is considerably elaborated in the Porto Rican Code by additions and classifications taken from the Louisiana Code. The bienes inmuebles and bienes inuebles of the Codigo Civil Espafiol throughout this title have been translated by “real property” and “personal property,” both by the official translation of the

Continued from 3 MICHIGAN LAW REVIEW, p. 119. “Definitions are, at best, unsafe guides in the administration of justice; and their frequent recurrence in the Louisiana Code is the greatest defect in that body of laws.” Prefatory note to Preliminary Title, p. s; cf. Just. Dig. 5~, 57, 202. ~ P. R. Code, Sec. 324, copied from Civ. Code of La., Art. 448. ~‘ Just. Inst. 2, s, pr.; Dig. s, 8, z; Gaius, Inst. 2, 12. ‘~ Cf. Art. 47’ and 475. ‘~ 5g. Code, Art. 335, 336.

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Bureau of Insular Affairs and by Dr. Walton. Their translation by the terms “immovable” and “movable,” in the Porto Rican Code, may be less confusing to the American lawyer who might attempt to find the place of “chattels real” under personal property. The title on community of ownership of property, with its elaborate provisions for joint ownership of a building of which the different stories belong to different owners, is transferred almost verbatim from the Spanish to the Porto Rican Code.63 In the last section (432) of the title on “Waters,” in the Porto Rican Code, we have the statement that “Anything not expressly determined by the provisions of this chapter shall be governed by the Special Law of Waters.” Until such “Special Law of Waters” is issued by the Porto Rican Committee on Revision, we are left to the supposition that this refers to the Spanish Law of Waters, translated by the Division of Insular Affairs, War Department of the United States, in 1900. That bete noire of the German civilians, “juristic possession,”64 seems to be admitted into the Spanish Civil Code in the definition of natural and civil possession. Natural possession is the holding of a thing or the enjoyment of a right by a person. Civil possession is the same holding or enjoyment, together with the intention of acquiring ownership of the thing or right.”65 The definition of “civil possession” here given seems to have the corpus plus animus of Savigny’s juristic possession,66 and one might expect that the fine spun distinctions between the natural possessor and the juristic possessor of the old Roman law, that have given so much trouble to modern civilians, were again to be enunciated in this code. Such does not seem to be the case, however, so far as the effects of natural and civil possession are concerned, and the Code of Civil Procedure specifically says that, “summary proceedings to retain or recover possession shall lie when the person who is in possession or in tenancy of a thing has been disturbed.”67 It is a cause of congratulation to Porto Rican lawyers, and to American lawyers who may deal with Porto Rican legal questions, that this question was left on the other side of the Atlantic. The New Code of Procedure for Porto Rico, 1904, does not even mention the subject.

It seems rather unfortunate that the Spanish codifiers did not

‘~ P. R. Code, Sec. 399-423; cf. Sp. Code, Art. 392-406. ~‘ Cf. the discussion of this subject by Monroe Smith, in his paper on Von Ihering, in the Pol. Sci. Quart., vol. xx (x8g6), p. 278 if. ‘~ Sp. Code, Art. 43o—P. R. Code, Sec. 433. ~ Cf. Sohm, Institutes, Sec. 6y, Note 2. ~ Code of Civil Procedure, Trans. by Division of Insular Affairs, Art. 2649. In a note to this section, a decision of June 25, x88o, is quoted, in accordance with which lessees may defend themselves in their own right.

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adopt the simple classification of iura in re aliena used by the modern German civilians,65 and divide them into personal and real servitudes, with reference to the subject rather than the object of the servitude, including under the first, those whose subject (owner) was a definite person, the easement in gross of the English law, and under the second, those whose subject (owner) was to be determined by reference to a thing; namely, the dominant estate, the easement appurtenant to land of English law. In the sixth title of the Spanish Code we have a discussion of the personal servitudes of usufruct, use and occupancy, without any statement as to their essential character and relations to servitudes in general. In the next title the real servitude is defined (Art. 530) but its essential relation to the subject matter of the preceding title is not made i5lain. The Porto Rican Code follows closely its Spanish model in these two titles, although there has been an attempt by the Porto Rican codifiers to remedy the defect above mentioned by the insertion in the seventh title65 of the classification of servitudes which affect land, into personal and real servitudes. Under the first heading are included usufruct, usus, and habitatio, which constitute the subject matter of the preceding title. It would seem that the application of this classification to all partial real rights, inserted at the beginning of Title VI, would have been helpful in showing the mutual relations of these institutions.

The classification of the third book of the Spanish Code on Different Ways of Acquiring Ownership does not seem especially happy. There is no attempt at a logical and complete enumeration of the various methods by which ownership may be acquired. One very important mode of acquirement, namely; by accession, has been already considered in the previous book in connection with ownership. Doubtless the Spanish legalists were influenced in this by the Code Napol6on, which follows the same method of presentation. The translation of the Spanish ocupacion, of the first title, by “Retention,” as given in the official version of the United States Government and also in the Porto Rican Code, is not so suggestive as the “Occupancy” of Dr. Walton’s translation, which exactly reproduces the Spanish and Latin originals, and deals with the acquirement of a res nullius by the finder or captor, in the case of hidden treasure or wild animals.

The most important title of this book is the third one, on successions. This long title, Articles 657-1087 of the Spanish Code, is adopted by the Porto Rican revisers with only slight changes. The

CS Cf. Sohm, op. cit., p. 359. CS Sec. 538, apparently borrowed from the Louisiana Code, Art. 646.

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Military Wills and Maritime Wills are omitted from the Porto Rican Code and the section on wills made in foreign countries is considerably condensed, as are also the provisions in regard to rights of surviving spouse and of illegitimate children. The provisions for an holographic will of the Spanish code are reproduced in the American code, and are considerably more elaborate than the simple provision of the Code Napol6on and Louisiana Code, that, “an olographic will shall not be valid unless it be written throughout, dated and signed by the hand of the testator.”70 In addition to the above provisions the Spanish-Porto Rican holographic will “shall be placed in a protocol, being presented for this purpose to the district court of the last domicile of the testator, or the court of the district in which said testator dies, within five years from the date of his death.”7’ The person with whom such a will is deposited shall present the same to the District Court within ten days after he hears of the death of the testator.73 The will when presented to the court shall be proved by means of three witnesses who are acquainted with the handwriting and signature of the testator or in absence of such witnesses by handwriting experts.73 The Porto Rican code provides that a literal certified copy of the will and of the proceedings in proof of it, issued by the District Court, “shall constitute a sufficient title for the recording of the real property of the inheritance, in whole or in part, in the registry of property.”74

The odd principle of the Falcidian fourth,75 reserved by law- for legitimate heirs, heredes necessarii, the legitime of the Code Napoleon and the Louisiana Code,76 is preserved in the Spanish Code and in the Porto Rican revision. “The lawful portion of children and their legitimate issue * * * is two-thirds of the hereditary property of the father and of the mother, though one of the two-thirds may be disposed of by parents for the purpose of applying it as a betterment to their children and issue.”77 A betterment is defined by the Spanish Code,78 as one of the two-thirds of the estate constituting the legal portion which may be disposed of by the parent in favor of one or more of their children or descendants. The course of the Spanish legalists in breaking up the subject

15 Code Napollon, Art. 97o; cf. La. Code, Art. ss88. ~‘ Porto Rican Code, Sec. 698; cf. Sp. Code, Art. 689. ~ P. R. Code, Sec. 699; cf. Sp. Code, Art. 6go. 3 P. R. Code Sec. 700; cf. Sp. Code, Art. 6gs. 24 P. R. Code, Sec. 702. ~ Gaius, Inst. 2, 227; cf. Just. Inst. 2, 22. ~‘ Code Nap., Art. 953; cf. La. Code, Art. 5493-2495. ~ P. R. Code, Sec. 796; cf. Sp. Code, Art. 8o8. 7’ Art. 823.

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of the different modes of acquiring property into the subject matter of Book III, on Different Ways of Acquiring Ownership, and Book IV, on Obligations and Contracts, will certainly meet the approval of English jurists, followers of Austin, for “it is one of Mr. Austin’s greatest services to the science of law that he brought the distinction between the iura in rem and iura in personam into use again and pointed out its important applications, after it had been for a century or more completely lost, as it were, to English thought and language.”70 It is to be regretted that the simple classification of iura in personam or obligations, on the principle of the source whence they arise, as given by Gaius and Justinian,50 was not explicitly followed by the Spanish codifiers. Titles I-XV do, as a matter of fact, include the iura in personam arising ex contiactu while quasi-contracts and delicts are all considered in the short title XVI (Art. 1887-1910) under the caption of Obligations Contracted Without Agreement.

To an English or American lawyer, used to our voluminous treatises on torts, with their elaborate enumeration of varieties of tortious act, the single page of the Spanish Code (Art. 1902-1910) devoted to the subject of delicts and quasi delicts, may be somewhat of a surprise, but the all embracing provision of Article 1902, “A person who by act or omission causes damage to another, when blame or negligence intervenes, shall be bound to make an indemnity for the damage done,” would seem to cover any possible case of tort. The Porto Rican Code is an exact copy of the parent code in this chapter.

The striking resemblance of the treatment of the subject of contract by the Spanish legalists to that so familiar to English and American students, as given in the standard treatise by Anson, is another exemplification of Bryce’s dictum,81 that it is in the realm of contractual relations that law tends to uniformity in the modern world. This is none the less striking even though we may surmise that there is an historical connection between the two in the use of the same or a similar source by the Spanish and the English jurists. Contract in the modern world has become a body of logical legal doctrine universal in scope and application. The discussion of the

(cites not corrected) Hammond, Int. to Am. Ed. of Sandar’s Justinian, p. L. ~ Inst. 3, 23, 2. Ant enins cx contractu su,xt out quasi ex contractu, out ex rnaleiicio, ant quasi cx,ualeflczo. Cf. Gaius, Inst. 3, 88. S~ “The more any department of law lies within the domain of economic interest, the more do the rules that belong to it tend to become the same in all countries. • ~ * But the more the element of human emotions enters any department of law, the greater becomes the probability that existing divergences between the laws of different countries may in that department continue, or even that new divergences may appear.” Bryce, Studies in History and Jurisprudence, p. 223.

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Essential Requisites for the Validity of Contracts82 reproduces the familiar Formation of Contract of Anson.83 Corresponding to the subject of Consent of the Spanish Code,84 we have the English Offer and Acceptance, Capacity of Parties and Reality of Consent.85 The Definite Object of the Spanish Code considers the Legality of Object of our English text-book.86 Finally, the causa of the Spanish Code87 is certainly the analogue of our “consideration.” How complete is the analogy of the Roman causa to the English consideration, the Porto Rican revisers have left us somewhat in doubt. The Spanish causa is uniformly translated “consideration” by the United States official version of the Civil Code, also by Dr. Walton in his translation, and by the Porto Rican Commissioners. But Section 1241 of the Porto Rican Civil Code says “In contracts, involving a valuable consideration, the prestation or promise of a thing or services by the other party is understood as a consideration for each contracting party; in remuneratory contracts the services• or benefits remunerated and in those of pure beneficence, the mere liberality of the benefactor.”83 This is evidently the contrat de bienfaisance of the French code,88 in which the causa of the old Roman law and its modern derivatives is broader in its application than is the English consideration.00

The question naturally arises how these so-called contracts of pure beneficence will be handled by the Porto Rican courts. Will the mere intention of conferring a gratuitous benefit be a sufficient foundation for a binding unilateral promise? The solution of this problem in our other Roman-American Codes has been found in the assimilation of the Roman causa in all particulars, to the analogous English consideration. The Civil Code of Quebec speaks of “A lawful cause or consideration”0’ as one of the four requisites to the validity of a contract, without apparently making any distinction between cause and consideration. The Civil Code of Louisiana says in so many words, “Cause is consideration or motive.”82 One would naturally expect that all such cases would

52 5p• Code, Art. 5265—P. R. Code. Sec. 2228. 55 Principles of Contract, Part II. 04Art. 1261-1270; cf. P. R. Code, Sec. 1228-1237. “Anson, Part II., Chap. I., III.. and IV. £‘Sp. Code, Art. 1271-1273—P. R. Code, Sec. s238-1240; cf. Anson, Part I., Chap. V. 55 Art. 5274-1277—P. R. Code, 2245-2244; cf. Anson, Part I., Chap. II. ~ Cf. El Codigo Civil Espaflol, Art. 5274. En los [contratos] de pura benedce,zcia (se intiende por causa] la inera liberalidad del bienhechor. ~‘ Code Napoleon, sso5. La contrat de bienfaisance est celni dons lequel l’u,se des parties procure L Vautre uss advantage pure,nent gratuit. ~‘ Cf. Pollock, Principles of Contract, p. 252 and Note. 51 Civil Code of the Province of Quebec. Annotated by Beauchamp, Art. 984. 52 Art. xSg6.

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be decided in accordance with Louisiana precedents, whatever may be the opinion of the court as to the intrinsic nature of consideration.03

To the American lawyer one of the most interesting phases of contract in the derivative Roman system is the class of contracts relating to property by reason of marriage. The title on this subject in the Spanish Code is followed in its general outlines by the Porto Rican revisers, though they have omitted the distinctions between the appraised and the unappraised dower, the sections on administration and usufruct of dower, on restitution of dower, and on paraphernal property. According to Paso y Delgado04 the institution of conjugal partnership goes back to the Fuero Juzgo and therefore may be assumed to be of Germanic origin. The great respect paid to woman by our Teutonic forefathers thus found legal expression, by assigning to the woman in the marriage relation a material share in the partnership property. The dower of the Spanish system is similar to the old Roman dos, in that it consists of the “property and rights brought as such by the wife to the marriage at the time of contracting it,” though it includes also such property and rights as she may acquire during marriage by gift, inheritance or legacy, as dower property. There is a survival of the later Roman donatio ante ituptias,06 in fact though not in name, in the provision that, “The husband may create it [the dower] before the marriage but not after it,”07 while the donatio propter nuptias of Justinian55 seems to be done away with by the provision00 that, “all gifts between spouses bestowed during marriage shall be void.” The use of the dos, however, as a contribution for the defrayal of the expenses of the marriage, ad inatrimonii onera ferenda,100 does not seem to be contemplated in the modern Spanish system. It is simply the separate property of the married woman. This is shown by the fact that the support of the marriage relation is not made a charge upon the dowry but upon the property of the conjugal partnership.101 It is this conjugal partnership, the “community of acquets and gains,” that constitutes the distinctive feature of the derivative Roman codes,102 and the provisions of the Spanish Code on this sub

53 Cf. Civil Code of Louisiana, Art 1773; 49 l.a. An. 5426, Succession of Rabasse. ~‘ Derecho Civil Espajiol, p. 478. 52 5i. Code, Art. s336—P. R. Code, Sec. 2303. 95 First mentioned in the constitution of Theodosius and Valentinian; See Cod. Just. 5, 57, 8, 4; cf. Sandar’s Just. Inst., p. 222. ~ Sp. Code, Art. r338—P. R. Code, Sec. 2304. ‘“Inst. 2, 7, 3; Cod. ~, 3, sg, so. ‘“Sp. Code, Art. s334—P. R. Code, Sec. 5305. ““Cf. Sohm, Institutes, p. 484. ‘~‘ P. R. Code, Sec. 2323, ~—Sp. Code, Art. 2408, s ‘~ Cf. Am. Law Reg. 29, ~). ‘9.

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ject are similar to those of the Louisiana Civil Code, as might be expected from their similar source. The earnings or profits obtained by either of the spouses during the marriage belong to the husband and wife share and share alike,’03 and this conjugal partnership is governed by the rules of articles of ordinary partnership in all that does not conflict with the express provisions on the subject of conjugal partnership.’04 The property of the conjugal partnership consists of: (I) Property acquired at the expense of the partnership property. (2) That obtained by the industry, salaries or work of the spouses. (3) The income from the partnership or from that of either spouse, during the continuance of the marriage.’05 The charges on the conjugal property are: (I) Debts legally contracted by either spouse during marriage. (2) Arrears or interest accrued during marriage, of obligations which affect the private property of the spouses as well as the partnership property. (3) Minor repairs to property of either spouse. (4) Extensive or minor repairs to conjugal property. (5) Support of the family and education of children.’00 The husband is the administrator of the conjugal property, with some exceptions—in the Porto Rican Code in regard to property in shares of a building or loan association, though he may not sell nor incumber real estate of the partnership without the consent of the wife. He may dispose of his half of the property by will. The partnership expires when the marriage is dissolved in the cases indicated by the Code, or is declared null. In the final article of this chapter we have detailed rules as to the method of liquidation of the property on the dissolution of the, partnership.’07

The Spanish Code avoids the confusion of the terms “sale” and “contract of sale” by using the latter term, which is described as a contract by which “one of the contracting parties binds himself to deliver a specified thing and the other to pay a certain price therefor in money or in something representing the same.”’05 This is the contract of sale of the classic Roman law, which is perfected as soon as the parties have agreed upon the price and upon the object of the con- tract.’00 As regards the beneliciuin rei in the contract of sale, the Spanish Code says that, “A creditor has the rights to the fruits of a thing from the time the obligation to deliver it arises. However, he shall not acquire a property right thereto until it has been delivered

Cf. Sp. Code, Art. s3ps—P. R. Code, Sec. 2320. 254 5p• Code, Art. 2395—P. R. Code, Sec. 2313. 102 5p• Code, Art. s4ox—P. R. Code, Sec. s~i6. ““Sp. Code, Art. s4o8—P. R. Code, Sec. 1316. 297 5p~ Code, Art. 5432-2443; cf. P. R. Code, Sec. 5331-1341. ““Sp. Code, Art. s44s—P. R. Code, Stc. 2348. 255 Gaius, Inst. 3, 539; Just. Inst. 3, 23; cf. Sp. Code, Art. s, 45o—P. R. Code, Sec. ‘353.

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to him.”0 There seems to be no such equally explicit statement in regard to the periculum rei. In Article 1182 of the Spanish Code”’ we have the statement that “an obligation consisting in the delivery of a specified thing, shall be extinguished when said thing should be lost or destroyed without fault of the debtor and before he shall be in default.” If this is the reproduction of the classical Roman provision that the purchaser bears the accidental loss occurring before the delivery of a thing, it certainly lacks the definiteness of its Roman model, which distinctly says that in case of accidental loss of the thing, the purchaser is still bound to pay the price.”2

The modern code retains in its main outlines the provisions of the classical law in regard to warranty. The vendor shall warrant to the vendee:

(I) The legal and peaceful possession of the thing sold.

(2) That there are no hidden faults or defects therein.”113

The vendor may, however, stipulate for exemption from the obligation of answering for eviction, if there is no bad faith on his part,”114 and also against hidden defects, if he should have been unaware of such faults.”115

The Spanish codifiers, following the example of the French, have not attempted the classification of obligations arising from contract on any principle. They have, nevertheless, followed in general the method of treatment of this subject laid down by Gains and modified by Justinian. The contracts of lease, of partnership, and of agency coming in the order mentioned after the contract of sale are the familiar locatio conductio, societas and mandatum of Gaius and of Justinian.”6 Coordinate with the subject of lease in general, we have in the Porto Rican Code, copied from the Spanish original, the subject of annuities or censos, defined as,”7 “not technically a rent charge, but an annuity charged directly on real estate, and also involving personal liability.” As the most important annuity we have the emphy-

Sp. Code, Art xogs—P. R. Code, 2062. ~ R. code, Sec. xm5o. 122 Just. Inst. 3, 23, ~. Cs,,,, aute~,s e,nptio et ve,zdftio contracta sit. .~. .. .~. .peri- culuin rei venditae stati,u ad ensptoreni perti,:et. .. . emptoris dam,,uns est, cui szccesse est, Ucet re~ss ilO~5 fuerit nactus, pretiu,u solvere. “‘ Sp. Code, Art. s474—P. R. Code, Sec. szu~~ cf. Sohm, Institutes, Sec. 82. 214 5g. Code, Art. 5475, last par. and x476—P. R. Code, Sec. 5378, last par. and 2379. “~ 5g. Code, Art x48s—P. R. Code, Sec. 2388. ~ 5g. Code, Book IV., Titles VI.-I~., adopted by the Porto Rican revisers; cf. Gaius, Inst. 3, 542.262; Just. Inst. 3, 24-26. 227 ~ Code, p. 208, note—P. R. Code, p. 1104, note. 21S 5p~ Code, Book IV., Title VII., reproduced in the corresponding subdivisions of the Porto Rican Code.

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teutic annuity.”8 This is the old Roman grant of land in perpetuity or for a term of years, subject to a payment of rent, declared by the Emperor Zeno to be a contract sui generis, governed by its own rules.”9 The emphyteuta stood in the same relation to the dominus as did the freeholder or copyholder to the lord in feudal times. It has retained in the modern codes its old time characteristics, even in such details as the forfeiture by the emphyteuta in case of non-payment of the annuity for three consecutive years.’29 The modern principle of agency, qui facit per alium per seipsum facere videtur, seems to be fully recognized in the modern codes, in the provision that, “a principal must fulfill all the obligations which the agent may have contracted within the scope of his authority.””’

In this, the Spanish-Roman Codes show the same advance on the classical Roman law as is found in other modern derivatives of the old Roman system, which never advanced beyond the point of view that a contract concluded by a representative, imposes, on principle, a liability not on the person represented, but on the representative.222

The term “bailment” does not appear in the index to the Spanish Code, and seems to have been put into the index of the Porto Rican Code merely as a concession to its use by English lawyers, with a cross reference to “loans” and “depositum.” Nor do the contracts re, as such, of the old classical law’23 appear, which, including, as they do, mutuum, commodatum, depositum and pignus, correspond so closely to our conception of the institution “bailment,” as being a contract whose essential characteristic is the delivery of a thing.

All obligations arising without agreement are treated of under one short title,’24 including, in the first chapter, the subject of quasi contracts, and in the second, all obligations arising from fault or negligence, of both the delictual and quasi-delictual type.

The definition of a quasi-contract as, “a licit and purely voluntary act by which the author becomes obligated with regard to a third person, and, sometimes, by which there results a reciprocal obligation between the parties concerned,” may be characterized as quite as unsatisfactory by way of definition as are most of the definitions of the quasi-contract in our own text-books. The instances of quasi contract cited are the familiar ones noted by Justinian; namely, those arising in case one takes upon himself the management of another’s business, and the case of money paid by mistake.

’25 2’~ Just. Inst. 3, 24, 3. 2~5 5p~ Code, Art. 2648, s—P. R. Code, Sec. ‘55’, m; cf. Cod. Just. 4, 66, 2. 225 5p Code, Art 2727—P. R. Code, Sec. 262g. 255 Sohm, Inst., p. 448. 155 Gaius, 3, go; Just. Inst. 3, 24. 224 5p~ Code, Book IV., Title xVI.—P. R. Code, same title.

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The brief treatment of what in English law constitutes the subject of torts has already been noticed.’20 The confusion of torts and crimes of the old Roman models,’27 so often noticed and criticised, has been, of course, avoided in the modern systems by the relegation of all crimes to a separate penal code.

The Spanish Code imitates the Code Napoleon in incorporating under the treatment of obligations the subjects of concurrence and preference of credits, and the subject of prescriptions. In these particulars it is imitated by the Porto Rican Code.

The Final Provision of the Spanish Code runs as follows :128 “All the legal compilations uses and customs, which constitute the common civil law, in all matters which are the object of this Code, are hereby abrogated.” The parenthetical, italicized clause of this provision has been severely criticised because of the ambiguity in the word matters.’20 The Porto Rican revisers have avoided ambiguity by the provision that, “The Civil Code and all other laws or bodies of law which directly or indirectly are in conflict with the provisions of this revised Civil Code are repealed and left without force or effect.”

It is a striking commentary on the practical identity of the legal provisions in regard to vested rights of property in different modem systems of law, that the Transitory Provisions of the Spanish Code on this subject have been copied verbatim by the Porto Rican revisers, with the exception of the paragraphs, 5-7 and 9-Il, which deal with the property rights of those under parental or tutorial control.

From the comparison, on the one hand, of the old Roman law with its modern descendant, and, on the other, of the modem Roman-Spanish Code with the Anglo-Saxon system, we may note that the tendency in the late continental Roman Code seems to be in the direction of a return to the classic model. The most important differences between the Spanish Civil Code and the Code Napoleon, in matters of classification, at least, are shown in the greater likeness of the Spanish Code to the institutional treatises of Gaius and Justinian. One of these changes; namely, the resuscitation of the distinction between ius in rem and ius in personam, has also previously received the endorsement of the best English legalists as a useful principle of classification. The comparison of the Spanish Code with the Porto Rican shows,

‘“‘-Cf. supra, p. x8g. 227 Gaius, Inst. 3, 282-225; Just. Inst. 4, 5-4. ‘-c’- 5p Code, Art. sg~6. “-s See ~Valton, The Civil Law in Spain and Spanish America. Historical Introduction, p. rio.

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in the first place, a considerable diminution of bulk. This loss is mainly in the third and fourth books. In the third book this comes from the cutting out of the provisions for military and maritime wills, for the reason assigned by the codifier, Senor Lopez; 130 some simplification of the subject of wills made in foreign lands; and a material reduction in the provisions governing rights of surviving spouses,’3’ and of rights of illegitimate children and acknowledged natural children.’32 The subtractions from the fourth book are of the provisions affecting dower and conjugal partnership.’33

The changes in the second book are unimportant, consisting, as they do, of a number of definitions added from the Louisiana Code and the subtraction of a few titles on special properties. The main change is in the first book, but it is significant that the change here is of the same general nature as in the other books. The subtractions are, in the main, from the provisions in regard to marriage, legitimacy of children, and the law of guardian and ward’ together with the omission of all distinctions between Spaniards and non-Spaniards. The main additions are in the long corporation act, taken from State laws on the subject, and in the more elaborate provisions as to the effect of absence, taken from the Louisiana Code. The principle guiding the Porto Rican Commission, whether followed consciously or unconsciously, is evidently the one suggested by Bryce, before referred to.’34 We find the variations between the Spanish and the American Codes in those branches of law most affected by the play of emotion; namely, in the law of husband and wife, and parent and child. The cutting out of the provisions in regard to protutor and the family council, though indirectly to be referred to the same general principle, is more immediately dependent upon the fact that the functions of these institutions are more efficiently performed in the English system by our probate and equity courts. The more elaborate provisions in regard to illegitimate children and their rights have been wisely simplified in the American Code, since the social relations whence they sprung have no longer any influence on this side the water.

The main addition to the Porto Rican Code, on the juristic person, reflects faithfully the spirit of the present day which is giving to the corporate personality perhaps more attention than to any other legal institution. We may be assured, too, that this is the least stable part

255 Report of Code Commission of Porto Rico, xgos, p. s~. 255 P. R. Code, Art. 825-823; cf. Sp. Code, 834-83g. ‘-~ Sp. Code, Art. 840-843 and g3g-g45; cf. P. R. Code, Secs. 824 and 9s3. “‘ 5g. Code, Art. 2337-2440, passim. 224 Cf. supra, N. 8s.

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of the new code, for it is in the realm where legal and political ideas are most unsettled.

It would seem to an outside observer that many of the definitions of the second book, borrowed from the Louisiana Code, might well have been dispensed with, and the same holds true of the more elaborate provisions in regard to “absence,” of the first book, taken from the same source; though doubtless the practical experience of the Spanish member of the Code Commission, Senor Lopez, has shown the necessity of introducing them. The work of the Porto Rican Commission has certainly been well done, and assures the development of Porto Rican law along a line parallel to that taken by our other body of Spanish-Roman law, the Civil Code of Louisiana.

One of the practical suggestions of the study of this codification to a student and teacher of law, is the possibility that some modern Blackstone, as gifted as his great predecessor, may some day give us a new institutional treatise on law. The question of codification or no codification has resolved itself of late years—after our not too flattering practical successes with codes—into a pedagogical question rather than one of practical application of law in the courts. Such a treatise must present in succinct form the essential principles of modern law, and it would seem that no more efficient working model for such a book on the institutes of law can be found than one of our modern American codes based on the old Roman law. The improvements on the Code Napoleon made by the Spanish legalists, in El Codigo Civil Espafiol, are mainly in the line of a return to Gaius, and the successful adaption of this code to a modern American territory shows that the fundamental principles of world law may now be stated lucidly and in moderate compass. JOSEPH H. DRAKE. UNIVERSITY OF MICHIGAN.