The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-04-20
oUBA's LAWS AND LEGAL System.


tablished by Spain In the island Of Cuba
gave rise to q widely prevalent belief that
the laws themselves we're bad. The atu-
tude OF the government Of intervention
appears to'have been based upon this as
sumption. 1t Is also evident that an idea
was held that men who had only q limited
knowledge OF the laws Of their own land.
and none whatever Of the Spanish law
were competent and qualified to revise
and amend the Spanish Codes.
In an address before the Ohio Bar As
ISOLATION In July. 1899, the Hon. William
Wirt Howe made the following statement:
The student OF spanish Jurisprudence 10 i'm.
which II displays. There 10 no trouble In this re-
spect. u 10 . noble system. But the contrast
between the splendid scienee OF the system and
the moral quality OF Its administrsuon IN the span
ish colonies 10 somsshins very pathetic.
The Spanish system Of jurisprudence
10. like all such systems. the result Of de-
velopment. 1t finds it, origin far back In
the legal systems OF the Latin races. 1t
IL rooted In the Roman Code. and 10 modi-
fed by the Napoleonio Code. Its definite
application 10 the island Of Cuba IL. how
ever. comparatively recent. Up to the close
Of the Ten Years War (is7e) the laws Of
Cuba. and the Spanish colonies In general.
were . much confused mixture OF the laws
OF Spain supplemented by an assortment
OF DEGREES, ordinances and regulations.
issued by the Crown, the Council and the
Church. The substructure upon which
these were piled was a system known as
the Laws Of the Indies.
A royal decree issued early in the six
teenth century established an institution
known as the Council OF the Indies. One
Of It's functions was TO devise suitable
means by which SPANS new colonial
possessions might be governed and
ruled In a proper manner" Walton's
Civil Law in Spain and Spanish America"
page 500 says: -The Council OF the
Indies had supreme jurisdiction over all
the colonies lof Spainl all the laws and
ordinances Of vioeroys and Governors
were subject to It's APPROVAL and II had
power TO frame laws In 1881 there was
effected . compilation Of the various laws
and DEGREES thus promulgated and estab-
lished. This work 10 known as the Re-
oopilaoion dc Leyes dc los Reynos de Las
Indies.' It formed the basis Of Cuban law
until the beginning Of the nineteenth CEN
fury. when the revolution OF that period
established the Constitutional Cortes In
Spain. Constitutionalism in Spain has had
q somewhat erratio career. but its influence
has marked the legal a. well a. the political
history OF that nation and it's colonies for
the last century.
Although Cuba remained subject colony,
her prolonged agitations and her occasional
revolts were by no means barren Of results.
To those measures. and notably TO the in
nuenoe of the Ten Years War Qsoe-is7s),
are due the legal reforms effected In Cuba
during the last quarter OF century. The
Spanish Codes were applied TO the island
In the following order:
Penal Code. May ~. is7s.
Mortgage law. May I. 1850. To bring this law
INTO fuller harmony with the Civil Code IL Wa
modified on July II. 1905
MonsrchieA Constitution. April Z. 1881.
Law Of civil procedure. Sept. Is. isss.
Commercial Code. Jan. %. 1855
Law OF criminal procedure. Oct II. 1858. |
Cavil Code. July u. 1850.
With the establishment of the Civil Code |
he laws Of Cuba became practically the /
anne as those Of the mother country. with /
he exception Of such minor notifications |
V became necessary to At them to colo. /
hal instead Of Crown Government. Under /
he Spanish Constitution. applied In April, |
1881, the Cubans became nominally pos
'essed OF all the rights Of Spanish citisen-
hip. This Constitution includes provisions
which are held to be equivalent TO Bill Of /
lights, and includes also the equivalent |
u an act Of habeas corpus.
While to the lay mind the Spanish legal
structure appears objectionably complex
md involved. 1t Is the fact. nevertheless.
hat 1t stands without superior In the his
DRY Of Jurisprudence. 1t contains much that
. unacceptable to those TO whom the opera
ion OF common law Is more familiar: but
should be remembered that II was framed
or and used by q people whose experience
nd whose habits Of thought differ In many
rays from the Anglo-Saxon. II 10 also to
e remembered that the system was ia
niliar TO its practitioners and to the people
Cuba. To supplant 1t bodily by the
ystem used in this country would have
cen q step utterly without warrant and
ssuredly productive OF q state Of endless
or the laws Of Cuba. 1t u prob
bly, enough to say that. upon our assump-
on of the control Of the island, We found
Established there . system OF laws and
gal procedure which was a. well adapted
, the needa and conditions Of the island
3 the common law Of England Ia to that
,untry. excepting it, need Of such changes
) were necessary to separate 1t from the
Governmental institution Of Spain.
The frat American interposition in the
ws OF Cuba appears In General Order
o. i01, dated from the Executive Mansion,
darlington, July IS, 1905. This declared
lat the municipal laws Of the conquered
'rritory lSsntiagol, such As affect private
gifts OF person and property. and provide
n the punishment Of crime, are consid-
ed a. continuing In force. % far a. they
70 compatible With the new order Of thincs |
: substantially - they were before
% occupation
In the autumn Of that year Gen. Leonard
'ood. a. Military Governor OF the province,
romulgated q really superiuous and
idly absurd Bill Of Rights. As this in
tuition is highly esteemed by the Ameri.
IN people. Gen. Wood gained notable
,lat with those who were a. unfamiliar
It'll the Spanish Constitution ~ he appears
have been. While assuming the previous
On -existenoe Of such q measure. his IA
ous bill included the declaration that the
rit Of habeas corpus should not be sus-
ended The United States Constitution |