¹ The capacity to survive is striking in the history of both systems of law. Apart from its survival of the fall of Rome and its steady evolution on the Continent under most varied conditions, the American experience of the civil law attests its durability. In lands once held by Spain and Portugal the pattern is unbroken. Although they refused further submission to those governments, they remained by choice subject to their civil law. Haiti, the first Latin-American colony to win independence, revolted against Napoleon but retained the Napoleonic Code. Cuba, the last to gain freedom, adopted political institutions quite out of the Spanish tradition, but kept the civil law derived from Spain. Likewise, the common law flourished in England through many political upsets. The United States threw off the political authority of England, but the states were unanimous in continuing the English common law tradition in their courts.

² An example is found in the history of the rules governing expatriation and naturalization. Europe, strongly influenced by the relation between kings and their subjects, held generally in both common law and civil law countries that an individual could not throw off the allegiance into which he was born and take on a new citizenship of his choice except with the consent of his sovereign. Older countries from which people were migrating insisted that wherever they went they still owed loyalty and even military service to the land of their birth. But in the New World a new doctrine arose responding to our need of population. The United States and other American countries championed the right of the individual voluntarily to expatriate himself and take on a new allegiance by naturalization. The differenee in legal doctrine has been a persistent source of controversy, as the history of diplomatic exchanges between my country and governments of the Old World shows. Indeed, it had a large part in provoking the War of 1812. We could not accede to the proposition that members received into our new society might still be under obligations, including that of military service, to the countries they had left behind. In fact, no small part of our grievance against Germany today is that even yet she does not recognize the principle of expatriation which most other Powers of the world have finally, if reluctantly, accepted. She still demands that German emigrants yield her obedience and service, even against the countries in which they have made their new homes.

³ See Cardozo, “The Judge as a Legislator,” Lecture III, The Nature of the Judicial Process. Yale University Press (1921).

Sir Frederick Pollock wrote: “The best and most rational portion of English law is in the main judge-made law. Our judges have always shown, and still show, a really marvelous capacity for developing the principles of the unwritten law, and applying them to the solution of questions raised by novel circumstances.” 9 Law Quarterly Review 106 (1893).

Lord Mansfield is a classic example of the law-reforming common law judge. In effectiveness he was a one-man Parliament.

⁴ Holmes, “Early Forms of Liability,” Lecture I, The Common Law. Little, Brown & Co. (1881).

⁵ Common and civil law systems coexist in both Canada and the United States. Quebec and Louisiana adhere to the French tradition. Several others of the United States have been much influenced by Spanish law and retain doctrines from it, such as community property holding between husband and wife. Common law states have shown a marked tendency toward codification. This has been one of the most useful devices of those who work for uniformity of law among the states, such as the National Conference of Commissioners on Uniform State Laws. The American Law Institite, while chiefly engaged in restating case law, has also proposed a model uniform Code of Criminal Procedure.

The Union of South Africa is an interesting example of the compatibility of English common law with Dutch civil law.

⁶ This recent interest is both evidenced and stimulated by such contributions as the address by Dr. Ricardo J. Alfaro to the American Bar Association, “The Legal Profession as Seen Through the Eyes of a Latin-American,” 28 American Bar Association Journal 742 (1942); also, “New World Constitutional Harmony,” by George Jaffin, 42 Columbia Law Review 523 (1942); Studies of the Comparative Law Section of the American Bar Association; and, of course, most importantly by the deliberations of the Inter-American Bar Association.

⁷ Dates of adoption of constitutions now in force are: Argentina, 1853; Costa Rica, 1871; Guatemala, 1879; Colombia, 1886; Ecuador, 1906; Mexico, 1917; Chile, 1925; Peru, 1933; Uruguay, 1934; Honduras, 1936; Venezuela, 1936; Brazil, 1937; Bolivia, 1938; Nicaragua, 1939; Haiti, 1939; Salvador, 1939; Paraguay, 1940; Cuba, 1940; Panama, 1941; Dominican Republic, 1942.

A compact but comprehensive survey of legal institutions and doctrines is given in a series of lectures, Law of the Latin-American Republics, by Crawford M. Bishop, of the Law Library of the Library of Congress.

⁸ Professor Dowling at our last meeting pointed out the parallel between the constitutional problems of Argentina and the United States. The Argentinian Supreme Court in 1887 had exactly the problem Marshall dealt with in 1803 in Marbury v. Madison, and in 1876 faced the same issue Marshall decided in McCulloch v. Maryland in 1819.

⁹ 28 American Bar Association Journal 733.

¹⁰ The experience of Brazil is a case in point with respect to the recent history of federalism in some of the South American countries. At the outset Brazil’s constitution provided for a system under which the powers of the federal government were strictly enumerated. The balance of governmental power rested in the states. They had their own constitutions, governors, and legislative assemblies, and in the course of evolution they attained a degree of independence and autonomy far beyond that in the United States. The situation became such that sectionalism began to become prevalent. Cf. Loewenstein, Karl, Brazil under Vargas (1942).CrossRefGoogle Scholar

However, by the decree of Nov. 11, 1930, the formar constitution (of 1891) was suspended. The decree provided, among other things, that the chief of government might appoint for each state a federal delegate called the “Interventor.” This is incorporated in Art. 9 of the Constitution of Nov. 10, 1937.

The Federal Government may intervene in the State, through the nomination, by the President of the Republic, of an interventor, who will assume, in the State, those functions which according to its Constitution, belong to the Executive Power, or those which, in accordance with the necessities and the requirements of each case, are given him by the President of the Republic:

(a) to prevent the imminent invasion of the National Territory by a foreign country or of one State by another, as well as to repel both forms of invasion;

(b) to reëstablish order which has been seriously disturbed in those cases in which the State will not or cannot do so;

(c) to administer the State, when, for any reason whatsoever, one of its powers shall be prevented from functioning;

(d) to reorganize the finances of a State which has suspended, for more than two consecutive years, the servicing of its funded debt, or which has failed to liquidate, after more than one year in arrears, the loan contracted with the Union.

(e) to assure the execution of the following constitutional principles:

1. republican and representative form of government;

2. presidential government;

3. rights and guarantees assured by the Constitution.

(f) to insure the execution of Federal laws and sentences.

The Interventor acts for his state as does the President for the Union. He is the executive authority of the union within the state and exercises jointly all legislative and executive powers. He may be recalled by the federal government. The mayors are appointed and dismissed by him.

Argentina is also making use of interventorship, but to a more limited extent. The power to appoint an interventor is given under Art. 6 of the Argentine Constitution of 1926.

The Federal Government intervenes in the territory of the Provinces in order to guarantee the republican form of government, or to repel foreign invasions, and, at the requirement of their constituted authorities, to support or reestablish them, should they have been deposed by sedition or invasion from another Province.

¹¹ Our Constitution refers in general to the protection of life, liberty, and property, whereas the Uruguayan Constitution of 1934 extends protection to “life, honor, liberty, security, labor and property, without distinction between citizens and non-citizens.” Art. 7; cf. Art. 35 (52). It also provides social and economic guarantees on a large scale with respect to the family, public health and welfare, labor and education. Nor are these safeguards confined to Uruguay. We find them in the constitutions of some of the island republics and other countries on both the east and west coast of South America, as well as in Central America and Mexico.

The Uruguayan guarantees are summarized by George Jaffin in “New World Constitutional Harmony: A Pan-Americanadian Panorama,” 42 Columbia Law Review 523, 550.

Compare the comprehensive safeguards provided in Art. 43 et seq. and 60 et seq. of the Cuban Constitution of 1940. (See Jaffin, op. cit., supra, p. 551, uote 76.)

There are also safeguards provided directly in the Mexican Constitution (1917, see especially Art. 123), the Constitution of Brazil (1937), Venezuela (1936), Panama (1941), and Peru (1933). For further discussion of the Constitution of Peru, see Bishop, , Constitutional Law and Lectures on the Law of the Latin-American Republics, p. 58.Google Scholar

¹² The “Law of Amparo” has been adopted also in El Salvador (1886, Art. 37, 102), Honduras (1925, Art. 29, 135), Nicaragua (1911, Art. 63, 124), and Guatemala (1935, Art. 34, 85).

¹³ Colombia has contributed a procedural machinery for protection of constitutional safeguards in the form of the ‘ “acción popular” or “acción pública” under which a private citizen may directly challenge the constitutionality of any law (1936, Art. 149). Cuba, Venezuela and Haiti have similar procedural safeguards. There is also a special procedure to handle appeals on questions of unconstitutionality in the form of the so-called “recurso de inconslitutionalidad.” See Jaffin, op. cit., supra, 567.