A guide to the law and legal literature of Cuba, the Dominican Republic and Haiti

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Title:
A guide to the law and legal literature of Cuba, the Dominican Republic and Haiti
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1 online resourec (ix, 276 p.) : ;
Language:
English
Creator:
Bishop, Crawford M ( Crawford Morrison ), b. 1885
Marchant, Anyda
Library of Congress
Publisher:
Library of Congress
Place of Publication:
Washington
Publication Date:

Subjects

Subjects / Keywords:
Legal research -- Cuba   ( lcsh )
Legal research -- Dominican Republic   ( lcsh )
Legal research -- Haiti   ( lcsh )
Derecho -- Historia y crítica -- Cuba
Derecho -- Bibliografía -- República Dominicana
Derecho -- Historia y crítica -- República Dominicana
Derecho -- Bibliografía -- Haití
Derecho -- Historia y crítica -- Haití
Droit -- Recherche -- Cuba   ( ram )
Droit -- Bibliographie -- Cuba   ( ram )
Droit -- Recherche -- République dominicaine   ( ram )
Droit -- Bibliographie -- République dominicaine   ( ram )
Droit -- Recherche -- Haïti   ( ram )
Droit -- Bibliographie -- Haïti   ( ram )
Genre:
bibliography   ( marcgt )
non-fiction   ( marcgt )

Notes

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Master and use copy. Digital master created according to Benchmark for Faithful Digital Reproductions of Monographs and Serials, Version 1. Digital Library Federation, December 2002.
Statement of Responsibility:
by Crawford M. Bishop and Anyda Marchant.
General Note:
Title from PDF t.p. (LLMC Digital, viewed Aug. 11, 2010).
General Note:
"Third in the Latin American series being issued by the Library of Congress"--P. iii.
General Note:
Includes index.

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Columbia Law Library
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Columbia Law Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
oclc - 642363657
Classification:
lcc - KGJ43 .B57 1944
System ID:
AA00001333:00001


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Columbia University Law Library






A Guide to the

Law and Legal Literature

of Cuba

the Dominican Republic

and Haiti

BY
CRAWFORD M. BISHOP
AND


ANYDA MERCHANT
Center of Inter-cAmerican Legal Studies
Law Library of Congress




WASHINGTON
The Library of Congress


1944
































op.

44



THE LAW LIBRARY
LATIN AMERICAN SERIES-
NO. 3






l'r- HOCUSE

r:e Vertwo~e:!e
I&td

'IV




C C; A y~. ....




.. ........ .... .. ^..........-.. ......... .....
... ........ .... ... ........... ..... .. ..












Preface

HIE present monograph is the third in the Latin American series
being issued by the Library of Congress and the first in the present
series of guides to the law and legal literature of the Latin American
republics to be issued by the Law Library. It has been compiled by
Dr. Crawford M. Bishop, director of the Center of Inter-American Legal
Studies, and his assistant, Miss Anyda Marchant The Center is' a project
in the program for cooperation with the Latin American republics now
being carried out by the Department of State, in which the Library of
Congress is taking part. Material for these guides has been collected in
the Law Library of Congress, in other libraries in the United States that
maintain Latin American collections and in the countries represented.
It is one of the purposes of the Center to provide guides to the law and
legal literature of Ecuador, Mexico, Paraguay, Bolivia, Peru, Uruguay
and Venezuela. With the present three guides for Cuba, the Dominican
Republic and Haiti; with Dr. Borchard's guides to Argentina, Brazil and
Chile; with the guide to the Central American republics by Edward
Schuster, Esq.; and the guide to Colombia by Richard C. Backus, Esq.,
and Phanor J. Eder, Esq., (also to be published in this series), the set of
bibliographies for the legal literature of the Latin American countries
will be complete.
Thanks are due to Dr. Emilio Menendez Men6ndez for his chapter on
the philosophy of law in the guide for Cuba and to Dr. Gordon Ireland
for reading the manuscript and making many useful suggestions that have
been incorporated into the Cuban guide. Acknowledgment is also made
to Mrs. Helen Lord Clagett of the Law Library staff for reading the
manuscript and indicating a number of improvements, and to Dr. Elio
Gianturco, also of the Law Library staff, for several suggestions, especially
in regard to the sections on criminal and labor law.
The Center is greatly indebted to M. Abel L6ger, one of Haiti's most
distinguished jurists, and to Dr. Clovis Kernisan for their aid in compiling
the guide for Haiti; and to Lic. Julio Ortega Frier and Dr. J. A. Bonilla
Atiles for suggestions and notes concerning the guide for the Dominican
Republic. Thanks are due to Mr. Guy H. Lippitt for reading both
manuscripts and giving the Center the benefit of his expert knowledge
of Dominican and Haitian affairs.
Dr. James B. Childs of the old Division of Documents of the Library
of Congress has been most generous in reading alk the guides and making
III








IV PREFACE

suggestions concerning the public documents of Cuba, the Dominican
Republic and Haiti.
The death of Dr. John T. Vance, the late Law Librarian, on the eve
of publication has made it impossible for this opening volume to carry
the foreword that he had intended to prepare. The Center was Dr.
Vance's conception and the publication of this series of guides the culmina-
tion of his lifelong efforts to forward Inter-American relations.
ELDON R. JAMES,
Law Librarian.
June, 1943































Cuba


I I -- I -- I


I --I-













































































r













Contents
PAGE
Introduction . . . . 1
General. ................... 3
Philosophy of law . . 4
Roman law .... ............. .. 8
History of law . . . 8
Bibliographies . 9
Legal periodicals. . . . .. 12
Indexes to legislation . ... .13
Legislation-Collection of laws:
General . . . . 14
Collections on special subjects . . .. 16
Constitutions ..... .... ... 16
Administrative laws . . ... 16
Civil status . . . .. 17
Civil procedure . . . 17
Labor laws . . . . 17
Other compilations on special subjects . .. 19
Collected codes. ... . . .. 19
Court reports and digests . .. ...... . 20
Constitutional law:
Texts and literature . . . ... 22
Habeas corpus . . 33
Laws governing suffrage and elections . . .. 34
Administrative law:
History and texts . . . 35
Literature:
General .............. .... 38
Procedimiento contencioso-administrativo . 40
Municipal law . . . 42
Civil service. ..... . 44
Public utilities . . 45
Courts and judges . . . .. 45
Form books ... . . 48
Notaries . . . .. 49
Civil code:
History. ................ 51
Civil registry. . . . ... 55
VII










Civil code-Continued.
Texts . . .
Texts . . .
Literature . ... .. ..
Contracts . . .
M marriage . . .
Divorce . . .
Legitimacy of children . .
Guardianship . . .
Civil status .. . .
Succession . .
Code of civil procedure:
History and texts . . .
Literature . . .
Commercial code:
History and texts . . .
Corporations . .
Insurance companies .. ....
Cooperative associations .. ...
Literature:
General . . .
Corporations . .
Negotiable instruments . .
Bankruptcy . . .
Other subjects . . .
Maritime law . . .
Penal code:
History and texts . . .
Literature . .
Code of criminal procedure:
Texts and literature . . .
Labor laws:
Legislation:
General . . .
Social programs . . .
Syndicates . .
The eight-hour day and paid vacations .
Labor contracts . . .
Minimum wages . . .
Women and minors . ...
Seamen . . .


Nationalization of labor .


PAGE
56
58
59
60
61
63
63
63
64

64
67

72
76
77
77

77
78
79
80
80
81

81
87

93


VIII


CONTENTS


. .


I









CONTENTS


Labor laws-Continued.
Legislation-Continued.
Housing legislation . . .
Workmen's compensation . .
Workers' insurance . . .
Strikes and lockouts . .
Conciliation and arbitration of labor disputes


Administrative bureaus
Employment agencies
Texts and literature .
Nationality and naturalization
Military law . .
Forests and public laws .
Mining laws -. .
Mortgage law ..... ..
Land rights . .
Sugar laws . .
Copyright .. ....
Patents and trade-marks
Public finance:
Money and banking .
Taxation .. ...
Aviation . . .
Railways and communications
Education . .
Laws affecting religion .
Private international law .
Public international law:
General . .
Treaties . .


International relations of the U. S. and Cuba:
The Platt Amendment : .


PAGE
100
100
100
101
101
101
102
102
104
105
106
106
109
113
114
116
117


. 139


.
.
.
















INTRODUCTION


THE laws prevailing in Cuba, prior to its independence, were those
promulgated by Spain.' The Penal Code was the Spanish Code
of 1870 extended to the Island by the Spanish royal decree of 1879.
The Spanish code of Criminal Procedure of 1882 was put into force in
Cuba, with modifications in 1889. The Code of Commerce that took
effect in Spain on Jan. 1, 1886 was extended to the Island by the Spanish
royal decree of 1879, was decreed by Spain for Cuba, Puerto Rico and
the Philippines on July 31, 1889, and the Code of Civil Procedure is the
Spanish Code of 1885 put into force for the same territory in 1885.
Spanish sovereignty over Cuba was relinquished under the terms of
the Treaty of Paris of Dec. 10, 1898 between Spain and the United
States. A convention which assembled on Nov. 5, 1900 drew up a
constitution adopted Feb. 21, 1901 under which the Island assumed a
republican form of government.
On Jan. 1, 1899 the United States Military Governor had proclaimed
the Codes as remaining in force, and by Order 148 of 1902 they were
continued in force until expressly abrogated or modified. To the same
effect was the transitory provision seven of the Constitution of 1901.
The relations between Cuba and the United States were governed by
the Platt Amendment to the army appropriation bill of March 2, 1901,
which the Constitutional Convention made a part of the Cuban Con-
stitution of 1901. This was followed by a convention between Cuba and
the United States at Havana on May 22, 1903. The Platt Amendment
was superseded on May 29, 1934 by a new treaty with the United States,
which, however, confirmed existing rights of the United States in the
naval station at GuantAnamo, and the acts of the United States during
the military occupation of the Island up to May 20, 1902.
In 1934 and 1940 new constitutions were adopted, but the codes then
in force were maintained. A new penal code was promulgated in 1936
but did not go into effect until Oct. 9, 1938.
By Order 427 of Oct. 15, 1900 issued by the Military Governor, which
went into effect on Dec. 1, 1900, the writ of habeas corpus was introduced
into Cuba and has since remained as part of the law of the land.
The executive departments of the Government of the Republic, by
Decree-Law 136 of Apr. 14, 1934, are the following: State (Estado),

SGaceta de Madrid. 1661-97. Subtitles of later years vary: Colecci6n de las
leyes decretadas por las cortes Ed. official, 1876-79, and other publications of
the Spanish Government.









LAW AND LEGAL LITERATURE OF CUBA


Justice (Justicia), Interior (Gobernacidn), Treasury (Hacienda), Public
Works (Obras Publicas), Agriculture (Agricultura), Commerce (Comer-
cio), Labor (Trabajo), Education (Educacidn), Health (Sanidad y benefi-
cencia), Communications (Comunicaciones), and National Defense
(Defensa Nacional). By article 151 of the Constitution of 1940, effective
Oct. 10, the designation of the executive departments was changed from
Secretaria to Ministerio. By the Executive Decree 2566 of Oct. 10, 1940,
listing the ministries, the Secretaria de Sanidad y Beneficencia was changed
to the Ministerio de Salubridad y Asistencia Social.
Since Puerto Rico, like Cuba, constituted one of the Spanish overseas
provinces prior to 1898, many of the codes and laws governing that island
were the same as those in force in Cuba. The Spanish Civil Code, the
Mortgage Law and its regulations, the Code of Commerce, the Law of
Waters and others had been extended to Puerto Rico as well as to Cuba.
Works dealing with these branches of the law of Puerto Rico may also
be consulted in investigating the law of Cuba prior to 1898.2 In Magoon's
reports 3 occurs the following statement regarding the status of the laws
in Cuba during the American provisional administration (1906-1907):
"The courts and judges of'the island occupy a position as high as that
of other countries. The Cubans are with reason proud of their judiciary.
This is due to the gifts of character and ability which the individuals who
compose the courts have; for the codes, procedure and the body of laws
are not adaptable to the form of the Government, nor to the existing
social and commercial conditions. The courts in Cuba have to struggle
with a great number of laws, the most complicated that exist in the world.
The laws of Cuba consist of some that had their origin in the Spanish
Peninsula where they were promulgated and afterwards extended to Cuba,
and later interpreted and modified by innumerable royal decrees, to which
were added those of the Spanish Military and Civil Governors, pro-
mulgated in many cases with reference to special or urgent matters; the
latter in turn were supplemented by Orders of the Military Government
established by the United States; the constitution of the republic making
them still more complicated by providing that the former laws should

'In the Bibliographies of Foreign Law Series No. 5, Puerto Rico, by Ram6n Siaca
(American Foreign Law Association Series, January, 1928), the following Digests
of Puerto Rican reports are mentioned: Digesto civil de Puerto Rico, by Jos6 R.
Gelpi; Recursos gubernativos by Pablo Berga, and Jurisprudencia hipotecaria by
Antonio Pomales, digests of decisions in matters affecting the Mortgage Law and its
regulations, covering vols. 1-22 of the Puerto Rico reports; Cddigo civil de Puerto
Rico by F. Socorro, an edition of the Civil Code, annotated with decisions of the
Supreme Court of Puerto Rico, including vols. 1-16 of the Puerto Rico Reports.
'Report of Provisional Administration from Oct. 19, 1906 to Dec. 1, 1908.
Havana, Imp. de Rambla, Bouza y cia., 1908-09.








GENERAL


continue in effect until others were enacted by Congress. Finally, the
President of the republic promulgated numerous decrees having the force
and effect of laws, and, during the last year, the Provisional Governor
has exercised legislative authority in numerous cases."

GENERAL

N 1905 a handbook on Cuba was issued by the International Bureau
of the American Republics, prepared by Gonzalo de Quesada, Cuban
Minister to the Uniter States, and approved by the Cuban Government.4
This contained chapters on the government and constitutional organization
as it then existed (Chap. II); on tariff and customs laws (Chap. IX);
educational laws and regulations (Chap. XIV); patents and trade-marks
(Chap. XV); and a bibliography. In the latter, which was compiled
by A. P. Griffin of the Library of Congress, the works are listed alphabet-
ically by authors. There is also a list of articles in periodicals, arranged
chronologically (1825-1905), and of United States Government documents
pertaining to Cuba, arranged chronologically. The appendix contains the
1901 constitution in English.
In 1916 Mariano Aramburo y Machado published a volume of critical
essays on law and international relations.5
Antonio L. Valverde y Maruri, professor in the Escuela de Comercio of
Havana, published in 1918 a collection of essays.6 These included an essay
on family law and another on agricultural liens (La prenda agricola).
A collection of the speeches and writings of Jos6 A. GonzAlez Lanuza
in the House of Representatives, with his biography, was published after his
death.7 He had been formerly professor of Criminal Law in the University
of Havana. This collection contains essays on legal and constitutional
questions, as well as economic, social and political subjects. One of the
addresses relates to the naming of a Commission in March, 1909 to study
the matter of a new Criminal Code and Code of Criminal Procedure.
In 1924, Santiago Gutierrez de Celis published a collection of articles.8
These are opinions rendered by the author, as Legal Adviser to the Cuban
Chamber of Commerce, from 1920 to 1923 and deal with matters of

SQuesada, Gonzalo de, Cuba. Washington, D. C., Government Printing Office,
1905. 541 p.
'Aramburo y Machado, Mariano, Doctrinas juridicas. Habana, Imp. "Cuba
Intelectual", 1916. 498 p.
*Valverde y Maruri, Antonio L., Estudios juridicos e histdricos. Habana, Imp.
"Avisador Comercial", 1918.
'Discursos y trabajos del Dr. J. A. G. Lanuza en la Camara de Representantes,
precididos de su biografia. Habana, Imp. de Rambla, Bouza y cia., 1921.
'Guti&rrez de Celis, Santiago, Cuestiones de derecho positive. Habana, Ed.
Ricardo Veloso, 1924. 512 p.








LAW AND LEGAL LITERATURE OF CUBA


commercial, civil, administrative, and penal law. There is a general
index under the above branches of law and an alphabetical index by
subject-matter.
In the "Report of the Commission on Cuban Affairs" entitled Problems
of the New Cuba published by the Foreign Policy Association in 1935,
there are cited many laws and decrees of the Cuban Government, par-
ticularly with reference to labor and social legislation.
J. Morales Coello, professor in the University of Havana, published in
1939 a text on legal medicine in connection with his course on legal
anthropology.0
E. Rodriguez Herrera, author of the Enciclopedia cubana juridico-
administrativa (1933) prepared in 1942 a dictionary of legal terms.10
This work contains a vocabulary of words used in the civil law, with an
explanation of the differences between those of related import.

PHILOSOPHY OF LAW

[The following chapter is the translation of a special article prepared by
Dr. Emilo Men6ndez Men6ndez, Judge of the Audiencia of Havana, and
noted author, for inclusion in the present Guide.]

BEFORE Father Agustin Caballero, who began his instruction in phi-
losophy at the end of the XVIII century, one cannot truthfully say
that this branch of learning was taught in Cuba. Up until then, all
that existed in this field were chairs devoted to the study of philosophy in
the convents, where teachers of little note merely commented on Aristotle's
text. Caballero, influenced by Jansenism and coming to Cuba rather
late, began to profess philosophy free from the set patterns of Scholasticism
and to attempt modes of thought different from the stereotyped ones
established by religious routine. Subsequently, on a higher level than
Caballero and initiating a new era ,in the teaching of philosophical
disciplines in Cuba, F61ix Varela y Morales, a priest who had been a
student of Caballero, began (under the protection of Bishop Espada, of
grateful memory to us) to deliver his Lecciones de filisofia 11 in the early
years of the 19th century, with a fundamentally rationalistic orientation.
Varela likewise prepared the way for the reform of the study of philosophy
in the Seminary of San Carlos, to which he belonged and which he made
illustrious by his teaching.

Morales Coello, Julio, Medicina legal y psiquitria forense. Habana, Imp. Carasa
y cla., 1939. 189 p.
0 Rodriguez Herrera, E., Sin6nimos juridicos. Habana, Imp. Arellano y cia.
1942. 275 p.
Varela y Morales, Felix: Lecciones de filosoffa. Habana, "La Ver6nica," 1940.
320 p.









PHILOSOPHY OF LAW 5

The cast of Varela's philosophical thought determined his political
position as frankly liberal. This was the origin of the persecutions, which
he underwent later because of his opposition to the Spanish colonial regime
in Cuba. However, Varela did not have a philosophy of law properly
so called. The earliest stirring in this field and the first systematization
of its subject-matter began with the publication in 1855 of Calixto Bernal's
Teoria de la autoridad,12 a book which, like all those of the period, was
influenced by jusnaturalistic doctrine, but which, nevertheless, had traces
of original ideas that make it possible for us to consider Bernal, in
AzcArate's opinion, a precursor of Kelsen. Bernal's book, which was
enlarged and republished in 1877 under the title El derecho, teoria y
aplicacidn del derecho y de la autoridad evinced the individualistic temper
of the time, to the extent of declaring as its aim, "That man may know
what his rights are and what he must do to carry them out and safeguard
them". This permits us to class Bernal among the supporters of the
jusnaturalistic theory which predominated in Cuba at the beginning of
the 19th century.
Another of the early students of the Philosophy of Law was Antonio
Bachiller y Morales. He published in 1857 his Elementos de la filosofia
del derecho o curso de derecho natural, in which may be observed, as
in Bernal, the influence of jusnaturalism and also of Krause, Bosmini,
and Ahrens, the very popular author of the Enciclopedia juridica, which
was later translated into Spanish by Francisco Gin6r de los Rios.
The 19th and the beginning of the 20th century was distinguished by
a group of outstanding thinkers, such as Jos6 Antonio Saco, Jos6 de la
Luz y Caballero, Jos6 Marti, Enrique Jos6 Varona, Rafael Montoro,
Manuel Sanguily and Fernando Ortiz. But they, although decisively
influencing the trend of Cuban culture, cannot be considered as genuine
legal philosophers nor as votaries of juristic speculation. Nevertheless,
some of them gave thought to juridical matters, so that it will not be
irrelevant to mention them.
Jos6 Antonio Saco, for example, although he did not give a definite
turn to juridical thought, may be included in this survey because his
liberal heritage in politics and sociology places him among the partisans
of the school of Natural Law; Marti, with a similar heritage, nevertheless
postulated that natural law must be supplemented and completed by the
formulas of justice which, as Recasens says, offers man legal security and
effects the reconciliation of positive and natural norms." Varona, a

"French edition: Theorie de l'autorite applique aux nations modernes .
2 vols. Paris, Didier et cie., 1861.
"Bachiller y Morales, Antonio: Elementos de la filosofia del derecho o curso de
derecho natural. Habana, Imp. del Tiempo, 1857. 164 p.
Le Riverend Brusone, Eduardo, Marti y el derecho. Habana.









LAW AND LEGAL LITERATURE OF CUBA


positivist, advocates simplicity in law and procedure as a means of making
these more efficient. He is skeptical of the intrinsic efficiency of legal
provisions when applied by officials who are not by nature just. Montoro,
an Hegelian, is a decided partisan of natural law and shows, in his
juridical ideas, the impress of Ahrens' system to which he gives great praise.
He likewise extols the systems championing the theory that above and
beyond the written rule there is a principle of reason which animates it
and which must guide the conduct of the judge. Ortiz, a brilliant
criminalist and a liberal, has been, so far as criminal law is concerned, a
positivist of the purest water, as is evidenced by his Proyecto de cddigo
cubano," published in 1926. No systematic expositor of legal philosophy
appears, however, in Cuba before Mariano Aramburo y Machado, with the
publication of whose work Filosofia del derecho 16 in 1924 and 1928, a new
impulse was communicated to juristic science, arousing general interest
in the themes of the Philosophy of Law. Aramburo's work, outside of
some innovations in language and method, follows, within the limits of
scholasticism, especially Thomistic scholasticism, the inspiration of
Canthrein, whom Aramburo cities frequently and admiringly. The work
is developed with a certain originality and in a language so polished as to
make reading it a pleasure. A disciple of Aramburo and an impassioned
advocate of natural law is Juan Exp6sito Casasis, at present a judge, a
prolific writer on juridical subjects and formerly a candidate for the chair
of the Philosophy of Law, reestablished in our University in 1928, whose
studies presented in competition for the chair are partly collected in his
Estudios filosdfico-juridicos.1' He later published his Fundamento,
Origen y desenvolvimiento de la idea del derecho natural.18 Giordano
Hernmndez Dou, who died prematurely and devoted his efforts to obtain-
ing the chair of Philosophy of Law, also belongs to this period.
Another writer of treatises in our field who merits special consideration
is the former Professor of Civil Law of the University of Havana, Pablo
Desvernine y Gald6s, now dead. In his Estudios fundamentals de derecho
published in 1928, Desvernine sets forth a rational jusnaturalism of the
finest quality, defending, as did Montoro, who wrote the preface to his
book, the theory that the legal structure of a people must be built upon

Ortiz Fernandez, Fernando: Proyecto de Cddigo Cubano. Habana, R. Velasco
y cia. 168 p.
Aramburo y Machado, Mariano, Filosofid del derecho. 3 vol. Nueva York.
Institute de las Espafias en los Estados Unidos.
Casasis, Jos6 Juan Exposito, Estudios filosdficos juridicos. Habana, Lib. Martio
1930. 86 p.
8"- Fundamento, origen y desenvolvimiento de la idea del derecho natural.
Habana, E. J. Roque. 1941. 25 p.









PHILOSOPHY OF LAW


the principles of reason that at all times orient it and to which the judge
must give special attention in fulfilling successfully his difficult task.
The first professor of philosophy of law in the university of Cuba after
the reestablishment of the chair in this subject was Gonzalo Freyre de
Andrade. He died prematurely in 1932 and left no other work than
some of his published studies, which were presented when he was a candi-
date for the professorship and in which he is revealed as an exponent
of utilitarianism.
Freyre de Andrade's successor was Emilio Fernandez Camus, who taught
Roman Law also over a long period. In the latter field he produced a
valuable treatise in five volumes and several monographs of great value.
The systematic work by Fern6ndez Cimus in the domain of legal specula-
tion is his Filosofia juridica contempordnea,"1 published in 1932. In it,
besides analyzing the great controversy between Reason and History and
studying with remarkable thoroughness the scope and meaning of the
contemporary schools of philosophy, he goes beyond the neo-Kantianism
of Stammler, and appears as a partisan of Max Scheler's philosophy of
civilization and theory of values.
A disciple of Camus, in a certain sense, is Antonio SAnchez de Busta-
mante y Montoro, the present assistant professor of philosophy of law in
our University, who has produced some valuable studies on philosophy
and law, especially his essay on Stammler,20 his Teoria general del
derecho 21 and his Introducci6n a la ciencia del derecho,22 in which he
stands forth, in his own words, "as a partisan of Kelsen's normativism,
but transcending it", as when, dissenting from some of his conclusions,
he gives to them a more vital meaning than Kelsen himself.
Another legal philosopher of great excellence and probably the most
original among us, is Carlos AzcArate y Rosell, author of Estudios de
filosofia del derecho,23-24 a work in which he develops, in a peerlessly lucid
literary style, the theory that all life is actuated by a tendency toward
something higher, which so far as law is concerned, is Justice. It is to
Justice as the ultimate aim that the whole juridical system must aspire,
if it is to fulfill its true role. AzcArate's book contains a series of judg-
ments of the various types of legal philosophy from the ancient oriental

Fernandez Camus, Emilio, Filosofia juridica contempordnea. Habana, Jesus
Montero, 1932. 195 p.
20 Snchez de Bustamante y Montoro, Antonio, Stammler, Ensayo de valoracidn.
Habana. Carasa y Cia. 1931. 104 p.
1 --, Teoria general del derecho. Habana, "El Ciervo Herido." 1939. 268 p.
2--, Introduccidn a la ciencia del derecho. Habana. 1942.
2" AzcArate y Rosell, Carlos, Estudios de filosofia del derecho. Habana, Ed. F.
Verdugo, 1940. 567 p.
535175-44- 2









LAW AND LEGAL LITERATURE OF CUBA


precursors to our own day, which can hardly be surpassed in point of
critical sagacity.
Another of our most distinguished young thinkers in the domain of law
is Miguel Jorrin y Fabian, at present professor at Williams College in
Massachusetts, who, since the brilliant studies he produced as a candidate
for the chair of Philosophy of Law at the University of Havana, has
published a long essay on "La fenomenologia y el derecho," in the
Revista de la Universidad de la Habana.25 Jorrin advocates the reestab-
lishment of the essence of Law as a consequence of general philosophic
meditation, one of whose domains is that of legal ideas, which must not
consist merely of practical rules, but on the contrary must elaborate abstract
theory of law. This belief is also at the basis of the thought of a dis-
tinguished young member of the Cuban judiciary, Jesis Figueras y
Gonzilez, in his Ensayos de filosofia juridica.26
Finally, legal philosophy is also cultivated by Fernando Alvarez Tabio,
municipal judge of Guanabacoa, whose latest work is entitled: Origen y
evolucidn de los derechos del hombre.

ROMAN LAW

E MILIO Fernindez Camus, professor of Roman Law and of the Phi-
losophy of Law in the University of Havana, has published a number
of treatises and monographs dealing with various aspects of Roman Law.
His first series appeared in 1922-1925.27 His present series is being pub-
lished under the auspices of the University of Havana.28

HISTORY OF LAW

BECAUSE of the slight modification made in the Spanish legislation
inherited by Cuba during the first decades of her independence, one
of the most important sources for an understanding of Cuban laws is the

Jorrin y Fabian, Miguel, "La fenomenologia y el derecho," Revista de la
Universidad de la Habana.
2" Figueras y Gonzalez, Jesis, Ensayos de filosoffa juridica.
2 Fernandez Camus, Emilio, Estudios de derecho privado romano. Fuentes del
derecho romano; personas y derechos de familiar. 2 vols. -, Disertaciones de
derecho romano. Habana, Jesus Montero, 1925; 2' ed., (vol. XVI of the Serie de
monografias juridicas) 1937. -, Varias conferencias sobre los principios
fundamentals del derecho hereditario. Habana, P. Fernandez, 1928. 2' ed., JesGs
Montero, 1937. 268 p.
Fernandez Camus, Emilio, Curso de derecho romano. Vol. I, Historia y fuentes
del derecho romano. 1939, Vol. II, Derechos reales-Teoria del negocia juridico,
1930, 1939: Vol. III, Personas y derecho de familiar, 1940. Vol. IV, Derecho
sucesorio, 1940. Vol. V, Derecho de obligaciones, 1941. Habana, "Cultural."










BIBLIOGRAPHIES


Historia de la legislacion espaiola of Jos6 Maria Antequera.29 He devotes
two chapters to Spain's American possessions.
In 1909, Jos6 Pennino published a work on the origin of the Cuban
provinces in which he described the development of the provinces in the
colonial regime and since the establishment of the Republic.3
Trelles 31 lists, under "History of Law," works by Antonio P. L6pez,32
Mariano Aramburo,33 Diego V. Tejera y Garcia,34 Rogelio Benitez y
Cardenas,35 and a volume of collected documents.36
In 1932, Antonio L. Valverde y Maruri published a biographical work.37
This contains biographies of foruteen Cuban jurists of the colonial and
Spanish regime, whose careers embraced the period from 1637 to 1874.

BIBLIOGRAPHIES

C ARLOS M. Trelles Y Govin is the compiler of a number of bibli-
ographies, several of which contain material on law.38 Trelles has
been vice-president of the Asociacion Inter-Americana de Bibliografia y
Bibliotecas de Washington. He has also published a three-volume his-
torical bibliography.39 In the third volume there is an index by subject-
matter in which are included several branches of private and public law.
In 1938 he compiled the bibliography of the University of Havana.40 In

9 Antequera, Jos6 Maria, Historia de la legislaci6n espaiiola. 4' ed. Madrid,
Imp. "San Francisco de Sales," 1895. 675 p.
80 Pennino, Jos6, Origen de las provincias cubanas. Habana, Imp. P. Fernandez
y cia., 1909.
3 Trelles y Govin, Carlos Manuel, Biblioteca histdrica cubana. tomo. III, pp.
52-54. Matanzas, Imp. de J. F. Oliver, 1922-1926.
2 L6pez, Antonio P., Reseiia histdrica del derecho de ultramar. Habana, 1864.
"Aramburo, Mariano, Doctrinas juridicas. Habana, Imp. "Cuba Intelectual,"
1916. 498 p.
3 Tejera y Garcia, Diego V., Estado de la legislacidn cubana y de la influncia
que ejerzan en ella la de Espaiia y la de otros paises. Madrid, Ed. Reus, 1925.
91 p.
Benitez y Cardenas, Rogelio, Reformas en nuestra legislaci6n. Habana, Imp.
de Rambla Bouza, y cia, 1903; 2" ed., 1905.. 524 p.
Documents historicos: Leyes de la revoluci6n. Habana, Imp. de Rambla,
Bouza y cia., 1912. 295 p.
Valverde y Maruri, Antonio L., Jurisconsultos cubanos, biografias y retratos.
Habana, "Cultural," 1932. 254 p.
Trelles y Govin, Carlos M., Bibliografia cubana del siglo XIX. 8 vols.
Matanzas, Imp. de Quir6s y Estrada. 1911-15.
-, -, Bibliografia cubana del siglo XX. (1900-1916). 2 vols. Matanzas, Imp.
de la vda de Quir6s y Estrada, 1916-17.
Biblioteca histdrica cubana. 3 vols. Matanzas, Imp. de J. F. Oliver,
1922-26.
4 -, Bibliografia de la Universidad de la Habana. Habana, Imp. de Rambla,
Bouza y cia., 1938. 337 p. (Publicaci6nes de la Revista Universidad de la Habana).









LAW AND LEGAL LITERATURE OF CUBA


this the works are listed in chronological order, from 1728 to 1938, but
not by subject-matter. There is an index by authors.
In 1917, there appeared the "Donativo Bustamante" catalogue of works
on International Law in the National Library.41
In 1926 there was published a bibliography of the Criminal Law of
Cuba, by E. Regiieiferos Boudet.42 This covered the period Jan. 1, 1901,
to July 26, 1926.
The Catdlogo de la Biblioteca del Dr. Gonzalo de Quesada y Ar6stegui,
published by the Cuban Chamber of Representatives in 1927, contains
many works by Cuban authors in all branches of law written prior to 1915.43
Many of these relate to the Spanish period of control. The works are
classified by subject matter under each branch of law to which they pertain.
There is an alphabetical index of authors. The books included in the
catalogue werepresented to the House of Representatives in 1921.
In 1928 the Pan-American Office of the Republic of Cuba, on the
occasion of the sixth Pan-American conference, published a Catdlogo de
obras de derecho international e historic de America,44 which contains
a list of works on all aspects of public and private international law,
arranged alphabetically by authors under the various subjects. Although
it includes works by other than Cuban authors, the latter are easily identi-
fied, since the place of publication is indicated together with the year of
publication.
A digest of legislation and court decisions and a legal bibliography of
Cuba from Jan. 1, 1899, to Jan. 1, 1930, was compiled by Gordon Ireland,
then assistant professor of Latin American Law in Harvard University, and
published in 1931.45 This contains a topical index to the legislation, a list
of laws and decrees, and a bibliography arranged alphabetically by authors.
The bibliography includes law books published in Cuba or published else-
where relating to Cuba. It also includes articles that have appeared in
legal journals.
The Revista Cubana de Derecho has published an index of the articles
appearing in that journal from 1924 to 1934 inclusive. The articles are

Catdlogo de las obras que forman su biblioteca derecho international. Habana,
Imp. de la Biblioteca Nacional. 1917. 72 p.
SRegileiferos Boudet, E., Bibliografia penal de Cuba. Habana, Imp. "El Siglo
XX", 1926. 64 p.
Catdlogo de la biblioteca de Dr. Gonzalo de Quesada y Ardstegui, Habana,
1937. 186 p.
Catdlogo de obras de derecho international e historic de America. Habana,
Montalvo y Cardenas, 1928.
SIreland, Gordon, El digesto cubano. Cambridge, Mass., The Plimpton Press,
1931.









BIBLIOGRAPHIES


classified under the different branches of law to which they relate, and are
arranged alphabetically by authors. A list of the laws and drafts of laws
the text of which has been published, is also included.46 This journal was
formerly entitled Revista Trimestral de Derecho Privado.
In 1936, Antonio Barreras y Martinez Malo, Judge of the Court of First
Instance of Santa Clara, published a biographical dictionary of Cuban
judges.47 This contains a list of the judges in Cuba, alphabetically ar-
ranged, with a biography of each, in which is mentioned each judge's
publications. There is an alphabetical index of the names and also one
by subject matter or title of the books, pamphlets and other writings of
the judges included in the compilation.
A bibliography of the University of Havana was published in 1936 by
the present Dean of the Law School, Juan M. Dihigo y Mestre.48 In this
bibliography the works are arranged by subjects, and within the subjects
by dates. The publications on law (Derecho) occupy about fifty pages
(pp. 156-205) and cover the years 1823 to 1933. They include theses and
dissertations by students, professors and others connected with the University.
They also include articles on legal subjects that have appeared in Cuban
legal journals, including the Revista Cubana de Derecho, the Revista
Cubana de Derecho Internacional and others. In the introduction it is
stated that some of the material was collected by the former Director of
the National Library, Domingo Figarola-Caneda.
Beginning in 1938 and continuing to the present time, there has been
published a Cuban biobliographical annual by Fermin Peraza Sarausa,
Director of the Municipal Library of Havana.49 In this the works are listed
alphabetically by authors, but there is also a subject-matter index.
An extremely useful general bibliography that includes the titles of several
books containing bibliographies of Cuban legal works, is that compiled by
C. K. Jones of the Hispanic Foundation, Library of Congress.5s
For the period 1935-1941, the law section of the Handbook of Latin
American Studies for these years may be consulted.5

"Indice sistemdtico de los trabajos publicados en la Revista Cubana de Derecho.
Secci6n doctrinal. Habana, Tip. de F. Verdugo.
a Barreras y Martinez Malo, Antonio, Diccionario biogrdfico del poder judicial
de Cuba. Habana, "Cultural," 1936. 572 p.
Dihigo y Mestre, Juan Miguel, Bibliografia de la Universidad de la Habana.
Habana, Imp. y Lib. "La Propogandista", 1936. 315 p.
SPeraza Sarausa, Fermin, Anuario bibliogrdfico cubano. Habana, Ed. A. B. C.,
1938.
~Jones, Cecil K., A Bibliography of Latin American Bibliographies. 2nd. ed.
Washington, D. C., Gov't Print. Office, 1942. 311 p.
Handbook of Latin American Studies. Cambridge, Harvard Univ. Press.









LAW AND LEGAL LITERATURE OF CUBA


The only comprehensive guide to Cuban government publications is that
compiled by James B. Childs of the Library of Congress.52

LEGAL PERIODICALS 53

T HE American Institute of International Law has published, since
1922, a monthly periodical,64 under the direction of the well-known
jurist, Antonio Sanchez de Bustamante y Sirv6n who drafted the Busta-
mante Code of Private International Law. The publication contains
various articles, in Spanish, on public and private international law con-
tributed by lawyers of all the Latin American republics and of the United
States. It also carries news of the activities of the Institute and its members,
bibliographical notices of new books published in the various American
countries, and a list of law reviews received, both American and European.
There is a semi-annual index by authors and subjects. The number issued
June 30, 1941 (Afio XX, tomo XXXIX, no 78) contains papers presented
to the first conference of the Inter-American Bar Association at Havana
in March, 1941.
The national bar association, with headquarters in Havana, publishes
the Repertorio Judicial,"5 which was established under the auspices of the
Colegio de Abogados de la Habana in 1925. It contains articles dealing
with various branches of the law, one section being devoted to the texts
of important laws and decrees. It carries notes of events of interest to
the legal profession, orders and decisions of the Supreme Court, and there
is an index in which the decisions are classified as civil and contencioso-
administrativo.
A monthly journal devoted entirely to matters concerning city real
estate is published under the direction of Bartolom6 S. Padilla. The
title is Revista national de la propiedad urbana.4 Although not primarily
considered a legal journal, the issue of January, 1941 (Afio VII, no. 64)
contains several articles regarding the rent law (Ley de alquileres).

2 Childs, James B., Cuban Government Publications-a Comprehensive Statement:
(Proceedings of the second convention of the Inter-American Bibliographical and
Library Association, 1939. N. Y. 1940. p. 123-152).
See Latin American Periodicals, currently received in the Library of Congress
Washington, Library of Congress, Hispanic Foundation, 1941. The definitive edi-
tion will be issued probably within the coming year.
SRevista de derecho international; drgano del institute americano de derecho
international. (1922) 12 nos. by tomo, year and no. Director; Antonio S. de
Bustamante y Sirv6n. Perfecto Lacoste 502, Habana (Aguacate) Cuba.
*Repertorio judicial; revista fundada bajo los auspicios del Colegio de Abogados
de La Habana. (1915) 12 nos. by year. Director: Francisco Llaca y Argudin.
Calle 28 entire 5 y 7 avenidas, Habana (Miramar), Cuba.
"Revista Nacional (1934?) 12 nos. by year and no. Director: Bartolam6 S.
Padilla. Habana, Cuba, centro de la Propriedad Urbana.









LEGAL PERIODICALS


The quarterly journal, Revista Penal de la Habana,57 was established
in 1938 as the official organ of La policia judicial de la Repiblica de Cuba.
This periodical contains articles on the doctrine of criminal law in general.
One section is devoted to leading criminal cases in which there are given
abstracts or digests of the decisions of the courts. A bibliographical section
reviews works on criminal law, and lists the contents of current legal
periodicals received by the journal. The director of the journal, Jos6
Agustin Martinez, was one of the codifiers of the present criminal code of
Cuba. The issue for July-September, 1941 (afio III, vol. III, no. 3) con-
tains a paper presented by Dr. Martinez at the first conference of the Inter-
American Bar Association at Havana, March 24-28, 1941, on legislative
uniformity in the matter of extradition. It also contained an article on
criminal law entitled: "La relaci6n de casualidad y la responsibilidad
criminal."
The text of important laws enacted in Cuba and foreign countries in
1933 is contained in the annual publication of the Society of Comparative
Legislation of Havana.6 The annual is edited by a large number of col-
laborators, and covers legislation both of Europe and of Latin America.
The section on Cuba, as of other countries, classifies the laws under different
topics, including fiscal, civil and constitutional law and treaties. It also
lists the important decrees by numbers and dates, and gives a summary of
their contents.
In 1941, the Revista de Medicina Forense y Criminalistica was founded
by the well-known professor, Israel Castellanos. It was dedicated to the
progress of forensic technique, including all the modern fields of scientific
judicial investigation, from legal medicine and criminology to penitenciary
technique. Three permanent sections are projected: general reviews on
current subjects, analytical reviews, and penal case-law.59

INDEXES TO LEGISLATION

AN INDEX to laws and decrees enacted between Jan. 1, 1899 and
Jan. 1, 1930 was published by Gordon Ireland, then assistant pro-
fessor of Latin-American Law in Harvard University.6o The laws and

Revista Penal de La Habana; 6rgano official de la policia judicial de la
Rep6blica de Cuba. (1938) 12 nos. by volume, year and no. Director: Jos6
Agustin Martinez. O'Reilly 251, Habana, Cuba. The inaugural number, issued
in December, 1938, was not numbered. The issue for January, 1939 began the
enumeration with vol. 1, year 1, no. 1.
Habana, Society of Comparative Legislation, Anuario, la series, III (1940).
"Revista de Medicina Forense y Criminalistica. (1941). Director: Israel Cas-
tellanos. Habana, Imp. de P. Fernandez y cia. Decription taken from note in
the Revista Penal y Penitenciaria, afio VI, no. 19, p. 214, enero-feberero-marzo, 1941.
Ireland, Gordon, El digesto cubano. Tomo I. The Plimpton Press, Cam-
bridge, Mass., 1931.









LAW AND LEGAL LITERATURE OF CUBA


decrees are listed separately, by number and date, and are indexed as to
subject-matter by reference to a syllabus or list of topics. This does not
contain the text of the laws and decrees, but only a reference to the source
where they may be found.6'
In 1932, Manuel Carbajal y Puentes, an official of the Mexican Treasury
Department, published an index to laws of Cuba promulgated from May
20, 1902 to Dec. 31, 1931.62 The laws are arranged under the day of the
year on which they were enacted, there being a page for each day of the
year from Jan. 2 to Dec. 31. After the description of the law, there is
given the page of the Gaceta in which it was published and the date of
such publication. An alphabetical index by subject-matter enables the
reader to locate the description of the law under the day of the year on
which it was enacted.
In 1935 Milo Adrian Borges, a member of the Bar of New York, pub-
lished a compilation of Cuban legislation.63 This is really an index, since
the entries are placed numerically under alphabetically arranged subject-
headings. The text of the laws and decrees is not given, but merely their
citations and a statement of their contents. An alphabetical index to
subject matter is included.

LEGISLATION-COLLECTIONS OF LAWS

GENERAL
A COMPILATION of historical interest is the collection of admin-
istrative orders issued by the Real audiencia pretorial de la Habana."
A handbook containing the constitution of the provisional government
of Cuba and the military ordinances was published in 1897.65 The annual
compilation of the orders of the military governors were published as part
of their annual reports.

A glossary of Spanish-English and English-Spanish legal terms is in tomo I,
pp. 59-72.
Carbajal y Puentes, Manuel, Sumario de las leyes de Cuba promulgadas desde
20 de mayo de 1902 hasta 31 de diciembre de 1931. Habana, Imp. P. Fernandez &
cia., 1932.
Borges, Milo Adrian, Compilacidn ordenada y complete de la legislacidn cubana
(1899-1934). La Habana, Cultural, 1935. 929 p. A supplement to this compila-
tion, covering 1935, was published in 1936; one for 1936, in 1937; one for 1937 in
1938; one for 1938 in 1940; one for 1939 in 1941; and one for 1940 in 1942.
Coleccidn de circulates expedidas por la Real audiencia pretorial de la Habana
y demds disposiciones relatives a los funcionarios del orden judicial de la Isla de
Cuba. Habana, Imp. del gobierno, Capitania general y Real audiencia por S. M.,
1865. 175 p.
Leyes de la Repiblica de Cuba. New York, Imp. "America." S. Figueroa,
1897. 93 p.









LEGISLATION-COLLECTIONS OF LAWS


A compilation of the principal orders published in Cuba during the
period of the intervention of the United States was made by Rogelio
Benitez y CArdenas.66 The legislation for the period from 1906-9 ap-
peared in English and Spanish.67
The revolutionary legislation of Cuba appears in a compilation published
in 1912.68
In 1906, the first volume of a collection of Cuban legislation was pub-
lished.69 It begins with Order 181 of the Military Governor, dated May
20, 1902, declaring in force the constitution approved by the Constituent
Convention of 1901, and covers the next three years up to June 30, 1905.
Volumes two and three covers the decrees of the Departamento de Estado
and the Secretaria de Estado y Justicia, treaties and so forth; these vol-
umes likewise appeared in 1906. In 1907, volume four appeared, contain-
ing decrees of the Secretaria de Gobernacidn, covering 1902. Volumes
5, 6, 7 and 8 covers the decrees of this ministry for 1902-1905. Volumes
9-14 covers the decrees of the Secretaria de Hacienda for the same period.
Volume 15 contains those of the Secretaria de Instruccidn piblica; volumes
16-17, of the Secretaria de obras pzblicas; volume 18, of the Secretaria
de Agriculture, Industria y Comercio. Beginning with volume 19, pub-
lished in 1911, this Coleccidn published a yearly volume of treaties, laws,
decrees, and resolutions, beginning with July 1, 1905. The last of this
series seems to have been volume 60, which was published in 1938, and
which had reached legislation passed in June, 1918.
In 1909, volume one of an official yearly compilation of laws, was
issued.70 This first volume covered from January 28 to June 30, 1909.
Volume 66 was reached in 1930.
A monthly compilation of legislation which appeared briefly was edited
by Francisco Llaca y Argudin.71
In 1925, J. Rivaz and E. C. Betancourt published a compilation of
Cuban legislation in the form of a dictionary.72

SReformas en nuestra legislacidn. 2' ed. Habana, Imp. de Rambla, Bouza y
cia., 1905. 524 p.
SDecrees September 29, 1906-January 27, 1909. 9 vols. Havana, 1906-
09. A yearly compilation of legislation, information concerning which is frag-
mentary, was the Boletin Legislativo. 16 vols. Habana. 1901?-1906.
Leyes de la revoluci6n de Cuba. Habana, Imp. de Rambla, Bouza y cia., 1912.
295 p.
SColeccidn legislative. Habana, Imp. de Rambla, Bouza y cia., 1906.
O Leyes y Decretos. Habana, Imp. de Rambla, Bouza y cia., 1909.
"Boletin judicial. Recopilacidn de leyes, decretos, circulares, etc., autorizada
por el Gobierno provisional de Cuba. Habana (?) Imp. "La Biblioteca." Vol. I
(1908), Vol II (1909).
"Rivaz, J. and E. C. Betancourt: Prontuario de legislacidn cubana. Habana,
1925.









LAW AND LEGAL LITERATURE OF CUBA


Andr6s Maria Lazcano y Maz6n published in 1931-1932, a compilation
in two volumes.73 The editor was Juez Municipal del Centro de la Habana.
The first volume contains the text of the Workmen's Compensation Law of
June 12, 1916; the Ley de los contratos de refacci6n agricola of March 2,
1922; the Ley orgdnica del poder ejecutivo (Chap. VIII). The second
volume contains the appeal of amparo in possession, and laws relating to
compulsory seizure of property, expropriaci6n forzosa.
E. Rodriguez Herrera, an attorney of Camaguey, published the first
volume of a compilation of legislation and case law in the form of a dic-
tionary, covering works beginning with the letters "a" to "adu".4
The Society of Comparative Legislation of Havana, which was estab-
lished in 1933, began the publication, in 1937, of an annual volume of
Cuban and foreign legislation. The first issue contains a summary of im-
portant legislation in Cuba in 1931 by Ricardo MorAn.75 The issue for
1938 contains a r6sum6 of legislation on Cuba during 1932.
The Revista Cubana de Derecho publishes an annual compilation of
laws (Secci6n de legislaci6n) containing a chronological list of laws and
decrees and an alphabetical index of the subject-matter. The issue for
1936 was afio VIII.
The publication called Jurisprudencia al Dia, issued by the Revista de
Jurisprudencia y Legislaci6n (which is the official organ of the Colegio de
Abogados of Havana), now issues two volumes a year of laws, decrees,
resolutions, and acuerdos, compiled from the Gaceta Oficial. An index by
topic and number of legislation is provided, and also an alphabetical one of
subjects.' These are included in the first volume of each year's set.

COLLECTIONS ON SPECIAL SUBJECTS

CONSTITUTIONS
Among special collections of laws may be noted a one-volume compila-
tion of the texts of all the constitutions of Cuba made in 1940 by Antonio
Barreras.77
ADMINISTRATIVE LAWS
In 1941, Mariano Sanchez Roca published a compilation of laws govern-
ing municipalities, including the national Constitution of 1940 and the

" Lazcano y Maz6n, Andres Maria: Legislacidn civil especial. Habana, Cultural,
1931-1932.
Rodriguez Herrera, E.: Encyclopedia cubano juridico-administrativa. Habana,
Arellano y cia., 1933.
Anuario de legislaci6n. Habana, Imp. Rambla, Bouza y cia., 1931.
Barreras Martinez Malo, Antonio: Textos de los constituciones de Cuba. (1812-
1940). Habana, Ed. "Minerva." 1940. 622 p.









LEGISLATION-COLLECTIONS OF LAWS


Organic Law for Municipal Corporations, as well as Decree 511 of Jan. 13,
1936, listing the old, the modern and the "definitive" names of the streets
of Havana, laws and decrees governing aliens and tourists. The volume
is well provided with alphabetical subject indexes and chronological indexes
to decrees.'8
CIVIL STATUS
A compilation of laws in relation to the civil status of persons was made
by Francisco Llaca y Argudin, President of the Sala de la Audiencia de la
Habana, former Municipal Judge in charge of the civil registry of Carde-
nas.'7 The provisions of the laws are arranged under subject heads and
include: the offices of Civil Registry and their personnel; books of the
Registry; proof of civil status; births, marriages, deaths, citizenship, change
of names, incapacitated persons. The laws included, of which there is an
index, are the Law of Civil Registry of Jan. 8, 1884, its Regulations of
Nov. 6, 1884, the Civil Code of July 24, 1889, and other codes and laws.

CIVIL PROCEDURE
A compilation of laws relating to civil procedure was published in 1905
by Alberto Trujillo y Acosta.80 This contains the text of the Law of Civil
Procedure of 1885, amended by law of June 23, 1893, the law of August
21, 1896, with related laws, military orders and decrees, with decisions of
the Supreme Courts of Spain and Cuba between 1898 and 1904. An
appendix contains special procedural laws relating to the railways, unconsti-
tutionality of laws, execution of foreign judgments, judicial fees, experts,
etc. The index lists the laws in chronological order under the headings:
judicial organization; special procedures; fees; general circulars; and
abrogated provisions.
LABOR LAWS
A compilation of social legislation, with annotations, was published in
two volumes by Jos6 R. Garcia Pedrosa, a former Assistant Secretary of
Labor.81 Each volume contains an alphabetical index of subject matter,

"SAnchez Roca, Mariano: Legislacidn municipal de la Reptiblica de Cuba.
Habana, Ed. "Lex", 1941. 584 p.
SLlaca y Argudin, Francisco: Legislacidn sobre el registro del estado civil en
Cuba. Compilacidn de disposiciones oficiales concordadas y anotadas. Habana,
Imp. de Rambla, Bouza cia., 2a ed., 1920, 297 p. 3a ed., 1930, 416 p.
Trujillo y Acosta, Alberto: Compilacidn procesal civil. Habana, Imp. C. Mar-
tinez y cia., 1905.
Garcia Pedrosa, Jos6 R.: Legislacidn social de Cuba. 2 vols. Habana, "La
Modern Poesia," 1936. Biblioteca de la Revista Cubana de Derecho. Serie
C. T. I.









LAW AND LEGAL LITERATURE OF CUBA


and at the end of volume II there is a chronological index of laws included
or cited in both volumes, dating from 1890 to 1935 inclusive. The laws
are classified by subjects under the following headings: International labor
organization and legislation; Cuban national administrative organization
of labor; labor laws; social policy; immigration. Under "social policy"
are included laws relating to aliens.
Appendixes to the foregoing were published in 1937-1939, which contain
the voluminous labor legislation of the years 1936 to 1939 and some other
laws of earlier years (1928-1936) which were published in the issues of
the Gaceta Oficiale. This volume contains a chronological index of the
laws, an alphabetical index of the subject matter, and a table of fines and
penalties. It also contains some topics not in the previous volumes,
namely, legislation regarding minimum salaries, savings institutions, etc.
An earlier compilation of labor legislation is that published in 1930 by
Carlos M. Moran.82 A compilation of labor laws was published in 1938
by Andrds Escanaverino.83 The text of the laws is preceded by a chrono-
logical list of all labor laws enacted from 1899 to Sept. 19, 1933. The
compilation, however, includes laws issued up to the end of December, 1937.
In 1941, Manuel Marti Escasena published a compilation of labor
legislation of the Republic of Cuba.84 It contains a chronological list of
the legislation included or referred to, dating from 1886 to May 21, 1941.
There is included the text of the labor provisions of the constitution of
1940 and the Organic Law of the Ministry of Labor. The remaining laws
are classified by subject matter. A set of forms for use in labor cases is
included.
The latest compilation is that by Mariano Sanchez Roca, Carlos M.
Raggi y Ageo and Andres Escanaverino.85 The appendix to this contains
awards of the National Commission of Arbitration. This compilation
also includes decisions of the Supreme Court construing the labor laws.
A chronological list of these decisions, classified under the various topics,
is included in the appendix. The alphabetical index or sumario forms a
useful digest and index of the entire legislation.

'Moran, Carlos M.: Legislacidn industrial. Legislacidn del trabajo. 1" ed.
Habana, "Cultural," 1930.
Escanaverino, Andr6s: Leyes del trabajo. Habana, Ed. "Alfa" 1938. 318 p.
(Cuba legislative).
Marti Escasena, Manuel: Legislacidn obrera de la Repdblica de Cuba. Ha-
bana, Lib. Selecta, 1941. 694 p.
Sanchez Roca, Mariano, Carlos M. Raggi and Andres Escanaverino: Leyes del
trabajo y su jurisprudencia. Habana, "Cutural," 1942.










COLLECTED CODES


OTHER COMPILATIONS ON SPECIAL SUBJECTS
In 1941, Rafael P6rez Lobo published a compilation of forestry
regulations.86
A compilation of Cuban legislation relating to mortgages and the mora-
torium was published in 1941 by Mariano Sanchez Roca, P6rez Lobo,
and Ruiz Sierra."8 This contains the text of the Ley Hipotecaria of 1899
and its regulations; the Law of April 3, 1933 and Decree-Laws 412 of
Aug. 14, 1934; 423 of Aug. 17, 1934; 594 of Oct. 16, 1934; the transitory
provisions of the Constitution of 1940 regarding the moratorium and its
regulations. There are separate alphabetical indexes to the mortgage law
and to the constitutional provisions and regulations. The text is supported
by notes and concordances.

COLLECTED CODES

T HERE have been a number of editions of a Spanish collection of the
Codes of Cuba s6 made by Pablo Barb6 y Huguet. These editions
include the texts of the Constitution, the Civil Code of 1889, the Code of
Commerce of 1886, the Mortgage Law of 1893 and its regulatory decree,
the Penal Code of 1879, the Law of Civil Procedure of 1885, and the Law
of Criminal Procedure of 1888.89 Before the text of each code or law,
the author inserts the Spanish decrees putting it in force in Spain and
extending its effect to Cuba, the order of the American Military Govern-
ment maintaining it in force, and the article from the Cuban Constitution
of 1901 doing likewise. In most cases, he also-inserts the exposici6n de
motives which accompanied the draft of the code or law to the Spanish
King or Queen regent. The editor also indicates, in footnotes, whether
particular articles have been abrogated or replaced by Cuban decrees since
the independence from Spanish sovereignty. The edition of 1925 also
carries the text of the Law of Notaries of 1873 and its regulatory decree.
In 1940, there was published in Havana a compilation of Cuban codes
and laws.90 The compilers were SAnchez Roca, P6rez Lobo and Ruiz

P6rez Lobo, Rafael: Legislaci6n de montes. Habana, "Cultural," 1941. (Vol.
V of the Manuales de legislation y jurisprudencia.)
"8 Snchez Roca, Mariano, Perez Lobo and Calixto Ruiz Sierra: Legislacidn hipo-
tecaria y sobre moratoria. Habana, Ed. "Lex", 1941. 396.
Barb6 y Huguet, Pablo, Cddigos de Cuba. Barcelona, Ram6n Sopena; Habana,
Jaime Benavent, 3" ed., 1922 1637 p.; 4" ed., 1925 1437 p.
8 The dates here given represent the dates at which these laws were put into
effect in Cuba.
"o Snchez Roca, Mariana, Rafael P6rez Lobo and Calixto Ruiz Sierra, Leyes
civiles de la Repdblica de Cuba. Habana, Ed. "Lex", 1940. 112, 446, 142, 362,
396, 661 p.









20 LAW AND LEGAL LITERATURE OF CUBA

Sierra. This contains the new Constitution of 1940; the Civil Code of
November 5, 1889, with supplementary legislation; laws relating to the
civil status of persons; the Commercial Code of May 1, 1886 and amending
laws; the Mortgage Law of July 14, 1893 and Regulations thereof; the
Law of April 3, 1933 relating to the moratorium on mortgages; the Code
of Civil Procedure of February 3, 1881; and the Organic Law of the
Judicial Power of Jan. 27, 1909 (Decree 127), with supplementary legis-
lation. The appendix contains the text of the Notarial Code of Feb. 20,
1929. Each section of the compilation contains a separate alphabetical
index of the subject-matter of all codes and laws contained therein and a
general index by title and chapter. The section on civil status of persons
contains the text of the Law of Civil Registry of Jan. 1, 1885 and the
Regulations thereof; the law relating to aliens of July 4, 1870; and a list
of treaties of extradition to which the Republic is a party.

COURT REPORTS AND DIGESTS

T HE reports of the decisions of the Supreme Court of Cuba from its
organization to Dec. 31, 1899, were published in a first volume in
1908.91 Thereafter separate volumes were published each year for the
civil and criminal branches up to volume 40 (covering the year 1908),
published in 1919.
The most important official compilation of case-law in Cuba is that
founded by Angel Urbano Almansa in 1912, the official organ of the Colegio
de Abogados de la Habana.92 Originally all cases included, on whatever
subject, were published in one yearly volume. Now, however, there are
several volumes for each year: two for the index to the new legislation pub-
lished during the year; one or more for criminal cases, one or more for
civil cases; and another for cases involving mortgages, constitutional ques-
tions, and suits or appeals against the government or its officials. All these
sections appear monthly.
Angel C. Betancourt y Miranda, a justice of the Supreme Court, pub-
lished in 1912 a Dictionary or Digest (Prontuario) of decisions of the
Supreme Court from 1899 to 1908, covering civil and administrative cases
(contencioso-administrativo) in one volume.93 In 1916, he published a
similar volume containing a digest of decisions in criminal cases, and in a

Jurisprudencia del tribunal supremo. 40 vols. Habana, Imp. de Rambla, Bouza
y cia., 1908-19.
La jurisprudencia al dia; revista de jurisprudencia y legislaci6n. 104 vols. in
103. Habana, Imp. de Rambla, Bouza y cia., 1912.
Betancourt, Angel C.: Jurisprudencia cubana. Prontuario, por orden alfabitico,
de la doctrine establecida por el tribunal supremo de la Repiblica de Cuba. 2 vols.
Habana, Imp. de Rambla, Bouza y cia., 1912-1929.









COURT REPORTS AND DIGESTS


separate volume, a digest of decisions rendered from 1899 to 1913 covering
mortgage law.
In 1915, a digest of decisions of the Supreme Court of Cuba rendered
between 1903 and 1912 in cases involving the constitutionality of laws and
decrees, was published by Betancourt.9 The decisions are arranged
alphabetically under subject matter. There is a chronological index of
the decisions digested. The decisions included in this compilation were
rendered in cases where appeals were brought under the Law of March 31,
1903 (published in the Gaceta of April 1, 1903). The text of this law,
with annotations to each article, is contained in the same volume. This
law was enacted in pursuance of Article 83 of the Constitution of 1901.
Decisions of the Ministry of Justice between 1910 and 1917 have been
published in eight volumes.9" Domingo Villamil y Perez has published
another volume of opinions handed down while he was letrado consultor.9
In 1916, a portion of a digest of decisions of the Supreme Court in
criminal cases was prepared by Leopoldo d'Costa y Carbonell.7 The
topics are arranged alphabetically under 128 heads, from "Abandono" to
"Estupro."
Another collection of decisions in civil cases is that of Martinez Giralt,
M. Dihigo and H. Figueroa (1908-1912).98
A monthly review that contains notes on legal questions, laws and decrees,
case-law, book reviews, etc., is the Repertorio judicial. This journal, which
is under the auspices of the Colegio de Abogados of Havana, was founded
in 1925."9
Two volumes of Acuerdos de la sala de Gobierno del Tribunal Supremo
de Cuba were published in 1930-1932 by Andr6s Maria Lazcano y Maz6n.1
An index to decisions of the Audiencia of Havana, cited in the decisions
of the Supreme Court, is contained in the section on Jurisprudencia in the

"Betancourt, Angel C.: Recurso de inconstitucionalidad. Habana, Imp de
Rambla, Bouza y cia., 1915. 328 p.
a Dictdmenes del Secretario de Justicia sobre cuestiones sometidas a su consult.
Habana, Imp. de Rambla, Bouza y cia., 1910-1917.
Villamil y P6rez, Domingo: Dictdmenes elevados al Secretario de Justicia.
Habana, Jes6s Montero, 1937. 137 p. (Biblioteca juridica de autores cubanos y
extranjeros, vol. XXXVI).
97 Costa y Carbonell, Leopoldo d', Indice de sentencias del tribunal supremo en
material penal. Cienfuegos, Cuba, Jos6 A. Riquelme, 1916. This is evidently the
first part of a projected work.
"Martinez Giralt, Felix, M. Dihigo and H. Figueroa: Jurisprudencia del tribunal
supremo de Cuba en material civil. 1928.
I' The editor is Francisco Llaca y Argudin, and the publisher is Rambla, Bouza y
cia., Habana. See section on Legal Periodicals.
1 Lazcano y Maz6n, Andres Maria: Acuerdos de la sala de gobierno del tribunal
supremo de Cuba. 2 vols. Habana, "Cultural," 1930-32.









LAW AND LEGAL LITERATURE OF CUBA


work by Gordon Ireland.2 This contains also a list of decisions of the
Supreme Court of Spain which have been cited in decisions of the Supreme
Court of Cuba, and another list of decisions of the Supreme Court of Cuba
cited in later decisions by the same court. Each of the decisions is accom-
panied by a reference to the subject-matter index or syllabus. The de-
cisions are arranged in chronological order.
The Revista Cubana de Derecho from 1929 to 1932 published an annual
digest of decisions in civil cases with an annual index.3 The compilers
were Alberto Blanco, Antonio Diaz Pair6 and Jorge Barroso. The de-
cisions are classified under the following heads: Workmen's compensation,
contencioso-administrativo, obligations and contracts, property and real
rights, appeal of cassation, procedural rules, and domestic relations. In
1929 and 1930 similar compilations were published of decisions in criminal
cases.
A digest of decisions rendered by the Supreme Court of Cuba during
the years 1919-1928 was compiled by Guillermo de Montagu y Vivero, a
judge of that court, and published in 1941.4 This contains decisions in
civil cases, mortgage law, contencioso-administrativo, and constitutional
law. The topics are arranged alphabetically by subject-matter in num-
bered paragraphs. There is also a chronological index of the decisions and
an index according to subject-matter. The preface states that the year
1919 was chosen as the beginning, since the compilation by the former
judge, Angel Betancourt (Jurisprudencia cubana), had terminated in
1918. The preface also indicates that the compilation will be continued
by publishing each year one volume covering a period of five successive
years. The citations to the complete text of the decisions which are
abstracted are to the volumes of the review La Jurisprudencia al Dia and
the Gaceta Oficial. The second volume covers the decisions rendered from
1924 to 1928, and is especially important since, as indicated in a footnote,
the former practice of publishing decisions in the Gaceta Oficial was dis-
continued after 1924, except with regard to cases involving constitutional
questions and jurisdiction.

CONSTITUTIONAL LAW
TEXTS AND LITERATURE
BEFORE its independence from Spain, Cuba had had more than one
constitution. The Spanish government provided one for Cuba and
Puerto Rico in 1897. The text of the latter was included in a compilation,
SIreland, Gordon: El digest cubano. Cambridge, Mass., Plimpton Press, 1931.
SRevista Cubana de Derecho. Seccidn de Jurisprudencia. Materia Civil.
Habana, Imp. de F. Verdugo.
'Montag6 y Vivero, Guillermo de: Jurisprudencia del Tribunal Supremo de
Cuba. 2 vols. Habana, "Cultural," 1941.









CONSTITUTIONAL LAW


in English, of the Spanish laws for the self-government of Cuba, published
by Arturo Cuyas and Abad de las Casas.A This was a work of special
pleading, directed toward influencing public opinion in the United States
in favor of Spain. The year before, another volume, with the same
purpose, was published in New York.6 This is a translation into English
of a review of the Spanish laws in force in Cuba, which had originally
been published by the Colonial Office in Madrid. It is a description
of the laws in force in Cuba, their evolution, with explanatory notes, and
data and statistics compiled from official records, intended as a refutation
of the bitter criticisms made in the United States of Spanish colonial
policy.7
A Spanish text of the Constitution provided for Cuba by the Spanish
government in 1897, was published in Madrid in 1898.8 Another Spanish
text was published in 1897 in Puerto Rico, for whose government this
constitution was also intended.9 An English version, with comments, was
published in New York in 1898.10 In 1899, the Division of Customs and
Insular Affairs of the U. S. War Department published an English trans-
lation including the Spanish royal decree of Nov. 25, 1897, granting self-
government to Cuba and Puerto Rico.11
The Cuban Congress, in revolt against Spain, had adopted a constitution
in 1869. An edition of this, in English, was published in that year in New
York.'2 In 1895, the Cuban Provisional Government, in Juriaguayt,
proclaimed a constitution, the text of which was published in Spanish in
New York.'3
In 1897, there was published a compilation by Jos6 Congosto y Vacillant,
of the constitutions and complementary laws prevailing in Cuba and Puerto

Cuyas, Arturo, and Abad de las Casas, The New Constitutional Laws for Cuba.
New York, Associated Spanish and Cuban Press, 1897. 11-168 p.
"Spanish Rule in Cuba; Laws governing the Islands. New York, 1896. 67 p.
'A history and description of the government under the Spanish regime is in
John Bassett Moore's Digest of International Law. Washington, Gov't. Print.
Office, 1906. Vol. VI, pp. 56-236, 379-386, 426, 447-472 [G. I.].
Constitucidn auton6mica de las islas de Cuba y Puerto Rico. Madrid, Imp. de
P. Pinto y Orovio, 1898. 135 p. (Biblioteca de la Revista juridica de ultramar).
Constituci6h autondmica, political, administrative de las islas de Cuba y Puerto
Rico. Puerto Rico, Sue. de J. J. Acosta, 1897. 67 p.
10 New York, at the Office of "Cuba," 1898.
"Translation. Constitution establishing self-government in the Islands of Cuba
and Puerto Rico. Washington, Gov't. Printing Office, 1899. 24 p.
Constitution of the Republic of Cuba. New York, Wynkoop and Hallenbeck,
1869. 3 p.
Leyes de la Repdblica de Cuba. New York, S. Figueroa, Imp. "America,"
1897. 93 p.
53517--44--- 3









24 LAW AND LEGAL LITERATURE OF CUBA

Rico in colonial times.14 This included the Royal Decree adapting to
Cuba and Puerto Rico the Electoral Law of June 26, 1890, a decree of
Governor General Blanco of Dec. 29, 1897, enforcing the Royal Decree.
A commentary on Cuban constitutional law, which contained the texts
of the constitutions of 1869, 1895, and 1897, was published in 1900 by
Nicanor Trelles.15
The Constitutional Convention for the drafting of a constitution for Cuba
as an independent republic, sat during 1900. The rules for the convention
were published in Havana in 1900.16 The minutes of the Convention were
published in daily issues." An English translation of the proposed Con-
stitution for Cuba, the text of the Platt amendment and of the Electoral
Law, was published by the Division of Insular Affairs of the U. S. War
Department,18 An essay by Thomas P. Ochiltree, of the U. S. Congress, on
the right of the United States to legislate for Cuba was published in 1900.19
An historical consideration of the various Cuban constitutions is to be
found in the opening chapters of Gustavo Gutierrez y SAnchez's study of the
Constitution of 1940.20 He has this to say:
"It is not strange, as a consequence [of the American occupation of Cuba
at the period when the country was making the difficult transition from
colony to republic], that the Constitution of 1901 was conceived only in the
light of the two great guiding principles of the constitutional thought of
the period: the declaration of individual rights and the organization of
the State and the Government according to Montesquieu's classical theory
of the separation of powers. The enunciation of social rights and the
definition of the national economic regime were not included. These newer
concepts, despite more than half a century's discussion, had nevertheless
failed to be incorporated in any constitution. .
"The draft of the reform [of 1928] was not sufficiently well understood
nor discussed before its presentation in Congress. And as the climax to

Congosto y Vacillant, Jos6, Constitucidn colonial de las Islas de Cuba y Puerto
Rico y leyes complementarios del Rdgimen Autondmico, establecido por los Reales
Decretos de 25 de Noviembre de 1897. Habana, Imp. del Gobierno, 1897.
"Trelles, Nicanor, Constituci6n cubana: comentarios a las leyes fundamentals
de los Estados Unidos y su adaptacidn a Cuba. Regla, Imp. M. G6mez, 1900.
121 p.
Reglamento para el Rdgimen de la Convencidn Constituyente de la Isla de
Cuba. Habana, Imp. "La Universal" de Ruiz y hno., 1900. 32 p.
Diario de sesiones de la Convencidn constituyente de la Isla de Cuba. (51 nos.
from Nov. 6, 1900 to September 10, 1901.) Habana, 1900-01, 651 p.
Translation of the Proposed Constitution for Cuba, Washington, D. C., Gov't.
Printing Office, 1901. 52 p.
Ochiltree, Thomas P., The Political Status of Cuba. Washington, B. S. Adams,
1900. 14 p.
20 Gutirfrez Sanchez, Gustavo, Constitucidn de la Repdblica de Cuba. Habana,
Ed. "Lex", 1941. 364 p.









CONSTITUTIONAL LAW


these unfavorable circumstances, the electoral legislation was modified with
the object of making it more difficult for groups of citizens who had shown
themselves opposed to the reform to participate in the election of delegates
to the Constituent Convention. This was a suppression of the constituent
power of the people. Finally, the substantial modification made by the
Draft Assembly, formed by Congress, gave rise (in the obscurity of Article
115 of the Constitution of 1901, which regulated the mode of modifying the
Constitution), to the controversy on the legitimacy of the Reform and the
Government elected as a consequence to it. This controversy set off the
revolutionary attempt of 1931 and initiated the conspiratorial period that
had its culmination in the North American Mediation of the summer of
1933 and in the Revolution of September 4 of the same year.
"In the obscure period from Aug. 12, to Sept. 4, 1933, the Government
of those days had no time to do more than annul the Reform of 1928,
restore in its original text the Constitution of 1901, and abrogate it a little
while after swearing to uphold it. This government was overthrown by
the military pronounciamiento of Sept. 4, which inaugurated a government
frankly revolutionary, not only from the point of view of constitutional law,
but one more fundamental, the social-economic; a government which
brushed aside the Constitution of 1901, governed nine days without subjec-
tion to any fundamental law and provided itself at last with the revolu-
tionary charter of Sept. 14, 1933. It was replaced by another, more
moderate government on Jan. 18, 1934.
"Thus was inaugurated the period called the Provisionalidad, during
which the Constitutional Laws of Feb. 3, 1934 and of June 11, 1935, the
first of which was modified thirteen times and the second once, were in
force. This period lasted until May 20, 1936, when the Constitution of
1901, as modified by the Constitutional Law'of June 11, 1935, once more
entered into full effect."
What Guti6rrez calls the third constituent period opened on the basis
of the fourth transitory provision of the Constitutional Law of June 11,
1935, according to which, "within six months from the date on which they
are constituted, the Senate and the House of Representatives must study,
discuss and approve, subject to the provision of article 115, a Draft for
Reform of the Constitution."
This third period, however, did not close until the final adoption of the
present constitution on July 5, 1940, although the legislative bodies were
reconstituted in 1936.
An official edition of the 1901 Constitution was published in Spanish
by the Military Governor in 1902.21 An English translation of this con-
situation, has been noted above. A report of the labors of the Congress

Constitucidn de la Republica de Cuba. Habana, 1902. 36 p.









LAW AND LEGAL LITERATURE OF CUBA


from May 5, 1902 to April 2, 1906, concerning the constitution and the
organization of the Republic, was published in 1906.22 In 1903, Francisco
Carrera y Jistiz published a monograph on the constitution and municipal
government.23 In 1904, the U. S. Bureau of Insular Affairs published a
compilation of the orders of the Military Governors and of the U. S. Presi-
dent and Secretary of State, setting up a free government in Cuba.24 This
includes a description of the state of Cuban public affairs, and was
printed as Senate Document No. 312 of the 58th Congress, 2nd session.
The Constitution of 1901 was published various times before the adoption
of the Constitution of 1928. As has been pointed out, it survived the
changes of government preceding and succeeding the second American
occupation. Jos6 Clemente Vivanco HernAndez, Secretary to the Gov-
ernor of the Province of Havana in 1902, edited the text of the Constitution
of 1901, with comments and annotations.2? Sidelights on the first decade
of the existence of this constitution are to be found in a monograph on the
political economy of Cuba, published in 1904 by A. Feria, a member of
the Cuban House of Representatives,2" and in a pamphlet published by
Le6n J. Canova in 1909,27 describing the new Cuban government and its
platform, illustrated with photographs of Jos6 Miguel G6mez and members
of his administration.
An annotated edition of the Constitution of 1901 was published in 1918
by Angel Ugarte.28 Another edition had appeared in 1910.2 An English
translation was published in 1922, which contained the amendments pro-
posed in 1913, 1917 and 1922.30 This edition was prepared by the U. S.
Embassy. In 1917, Miguel Alonso Pujol published a treatise on constitu-

a Memoria; Cdmara de Representantes. Habana, Imp. de Rambla, Bouza y cia.,
1906.
Carrera y J6stiz, Francisco: La constitucidn de Cuba y el problema municipal.
Habana, "La Moderna Poesia," 1903, 52 p.
4 The Establishment of Free Government in Cuba. Washington, Gov't. Printing
Office, 1904. 32 p.
"2Vivanco Hernandez, Jos6 Clemente, Constitucidn de la Repdblica de Cuba.
Habana, 1902. 160 p.
Feria, A.: Algo sobre political econdmica. Habana, Imp. de Rambla, Bouza y
cia., 1904. 20 p.
Canova, Le6n J.: Cuba, a pamphlet descriptive of the Island of Cuba. Havana,
Franklin Co., 1910. 67 p.
Ugarte, Angel: Comentarios a la Constitucidn de Cuba. Habana, Compaiiia
Biogrifica, 1918. 67 p.
2 Constituci6n de Cuba. Habana, Imp. de Rambla, Bouza y cia., 1910.
SComparative Print of the Constitution of Cuba and Amendments proposed
thereto in 1913, 1917 and 1922 with appendices. Havana, The Times of Cuba
Print Shop, 1922.










CONSTITUTIONAL LAW 27

tional reform.31 In it the author incorporated the draft constitution drawn
up by Ricardo Dolz y Arango in 1913, embodying a parliamentary system
of government for Cuba. Ten years later, Juan Clemente Zamora y L6pez
published a volume of articles on the reform of the constitution.32
A study of the right of appeal on the ground of unconstitutionality was
published in 1912 by Rail de Cardenas y Echarte.33 This was a discussion
of the Law of March 31, 1903.34 An edition of the law, with annotations
and illustrative case-law, was.published in 1915 by Angel C. Betancourt.3
This contains the text of the Law of March 31, 1903, and a digest in the
form of a dictionary of the decisions of the Supreme Court from 1903 to
1912 in appeals involving questions of the constitutionality of laws.
A collection of source material for the study of Cuban constitutional his-
tory was compiled in 1925 by Juan Clemente Zamora y L6pez, a professor
on the Law Faculty of the University of Havana.6 The preface to this
work was written by Jos6 A. del Cueto, dean of the Law Faculty. The
author's introduction contains a summary of Cuban constitutional history
comprised in the 53 documents included in the compilation. The summary
closes with the year 1898. In 1927, the third edition of Isidro P6rez
Martinez's history appeared.3' The Minutes of the Constituent Conven-
tion of 1928 were printed in daily issues.38 An edition of the constitution,
then adopted, appeared in 1928."3 In that year, also, there was published
an edition which contains the text of the treaty between Cuba and the

"Alonso Pujol, Miguel: La reform constitutional y el sistema parlamentario.
Habana, Imp. "El Siglo XX" de A. Miranda, 1917. 152 p.
"Zamora y L6pez, Juan Clemente: Estudios sobre el proyecto de reform cons-
titucional. Habana, Imp. de Rambla, Bouza y cia, 1927. 75 p.
CArdenas y Echarte, RaI6 de: El recurso de inconstitucionalidad. Habana,
Imp. P. Fernandez y cia., 1912. 53 p.
Ley sobre la constitucionalidad de las leyes. Ed. official. Habana, Imp. de
Rambla, Bouza y cia., 1903. 9 p. (Colecci6n legislative, vol. I, p. 225.)
Betancourt y Miranda, Angel C.: Rescurso de inconstitucionalidad. Habana,
Imp. de Rambla, Bouza y cia., 1915. 328 p.
"Zamora y L6pez, Juan Clemente: Derecho constitutional. Cuba. Colecci6n
de documents selectos para el studio de la historic political de Cuba. Habana,
Imp. "El Siglo XX", 1925. 311 p.
"P6rez Martinez, Isidro: Resumen de la historic de Cuba con la Constitucidn de
la Repdblica. Habana, "Cultural," 1927
Diario de sesiones de la convencidn constituyente. Habana, 1928. A discus-
sion of the method of amendment and the proposed changes to be submitted to the
February, 1928, Constitutional Convention is in Gordon Ireland's "Changing Cuba's
Constitution," 13 Amer. Bar Association Journal, 617-621 (1927).
Constitucidn de la repdblica de Cuba. Habana, Rambla, Bouza y cia., 1928.
32 p.









LAW AND LEGAL LITERATURE OF CUBA


United States, the Hay-Quesada Treaty, the Platt Amendment, and the
treaty of Peace between Spain and the United States.40
A volume of lectures on the Cuban constitution was published in 1928
by Antonio Bravo y Correoso.4 In 1930, Cosme de la Torriente y Peraza
published an argument against the constitutionality of a decree issued by
the President suspending the right of assembly.42 Mario Garcia Kohly,
Cuban ambassador to Spain, in 1930 wrote a work on the constitutional
aspects of Cuban-American relations.43 In this he discusses the concept
of the Executive Power and compares the powers of the Executive of Cuba
under its constitution with that of the President of the United States. He
also makes a comparative study of the Executive Power in Switzerland and
in Uruguay. He devotes a chapter to a criticism of the various Cuban
constitutions.
The years 1933 and 1934 saw the production of a number of critical
works looking to the reform of the constitution.44 In 1934 was issued the
constitutional law promulgated by the Council of Secretaries (Cabinet)
under the Provisional Government of Carlos Mendieta.4" This law ap-
peared again in 1935.46 In February, 1934, Juan Guti6rrez y Quir6s,
ex-President of the Supreme Court, published a study,47 dealing with the
appeal on the ground of unconstitutionality, written before the passage
of the Constitutional Law of Feb. 3, 1934, which, in Article 78, Section 5,
modified the provisions of Article 83 of the Constitution of 1901. The
author states in his preface that his purpose was to examine the provisions
regarding appeals on the ground of unconstitutionality against the reforms
made in 1928 to the Constitution of 1901. One of the chapters is devoted
to a study of decisions of the Supreme Court of the United States. The
appendix contains citations from several opinions rendered by the Cuban
Supreme Court on constitutional questions.

Constitucidn de la repiblica de Cuba. Habana, "Cultural," 1928.
"Bravo y Correoso, Antonio, Cdmo se hizo la constitucidn de Cuba. Habana,
Imp. de Rambla, Bouza y cia., 1928. 113 p.
Torriente y Peraza, Cosme de la, En defense de los derechos del hombre y del
ciudadano. Habana, Imp. de Rambla, Bouza y cia, 1930. 111 p.
Garcia Kohly, Mario, El problema constitutional de Cuba y de nuestra Amirica.
Paris, Imp. "Labor," 1931. 379 p.
"Discursos leidos en la recepcidn ptblica del Dr. Carlos Manuel de Cispedes y
Quesada la noche del 27 de febrero de 1933. Habana, Imp. "El Siglo XX," A.
Mufioz y hno., 1934.
Habana, Papeleria national, 1934.
"Ley constitutional de la repuiblica de Cuba promulgada en consejo de secre-
tarios bajo la presidencia provisional del coronel Carlos Mendieta. Habana, Tipos-
Molinos y cia., 1935. 46 p.
Gutierrez y Quir6s, Juan: La reform constitutional y el tribunal supremo.
1' ed. Habana, Jes6s Montero, 1934. 184 p. (Biblioteca juridica de autores
cubanos y extranjeros. vol. XIV).









CONSTITUTIONAL LAW


A new constitution was adopted in June, 1935, and an edition appeared
in that year.'4 A proposed draft for a constitution was published by Luis
Manuel Marrero y Reboredo.49
A lecture on the new constitution given by Jos6 Rodolfo Rodriguez
Alvarez was published in 1936 in Argentina.6 In 1936, Enrique Gay-
Calb6 published, as a monograph, the lecture he had read before the
Escuela Privada de Derecho.51 He also published in 1936 a collection of
essays on constitutional questions.52 Here he discusses the constitution of
1901, the reforms of 1927, and included a comparative study of some
European constitutions.
Enrique HernAndez Corujo, professor of Constitutional Law in the
Escuela Privada de Derecho, published as a monograph in 1936 53 a lecture
delivered on Aug. 23, 1935, which also appeared in the Revista Cubana de
Derecho.54 It does not discuss all of the reforms made in 1935. Ram6n
Infiesta, while a professor in the Escuela Privada, published in 1937 a
monograph in which he discusses constitutional questions.5 A critical
draft for a reform of the constitution by Juan Jos6 Exp6sito Casasis ap-
peared in 1937.61 A monograph on the subject was published by Guillermo
de Z6ndegui.57
In 1938, Gustavo Guti6rrez y SAnchez published volume one of a history
of Cuban constitutional law.58 Four parts are projected by the author:
Book one, on the pre-Columbian epoch; book two, on the colonial period;
book three, on the North American occupation; and book four, on the Re-

Constitucidn de la repdblica de Cuba. Habana, Imp. de Rambla, Bouza y
da., 1935. 53 p.
SMarrero y Reboredo, Luis Manuel: La soberania popular; proyecto de constitu-
cidn para la Repsiblica de Cuba. Habana, M. Martin, 1935. 56 p.
SRodriguez Alvarez, Jos6 Rodolfo: Principios de legislacidn y la familiar en la
constituci6n cubana. Buenos Aires, Antologia Juridica, 1936. 30 p.
Gay-Calb6, Enrique: El moment constitutional; las constituciones del mundo y
la future constitucidn cubana. Habana, Molina y cia, 1936. 26 p.
"- Nuestra problema constitutional. Habana, Lib. Nueva, 1936.
130 p.
Hernindez Corujo, Enrique: Las transformaciones del derecho constitutional
cubano desde el 12 de agosto de 1933. Habana, Tip. de F. Verdugo.
Revista Cubana de Derecho, (Habana) Tomo XII, p. 276.
6Infiesta, Ram6n: La crisis del poder en Cuba. Habana, Tip. de F. Verdugo,
1937. 95 p.
Casasis, Juan Jos6 Exp6sito: La nueva cludad del Sol. la ed. Habana, "Cul-
tural," 1937. 143 p.
"' Zndequi, Guillermo de: Fundamentos doctrinales para una nueva constitucidn
del estado cubano. Habana, Publicaci6n del Bur6 de Propaganda Aut6ntica, 1939
7-62 p.
"Guti6rrez y Sanchez, Gustavo: Historia del derecho constitutional cubano,
Habana, "Cultural," 1938.









LAW AND LEGAL LITERATURE OF CUBA


public. This first volume brings the study down to the Leyes de Toro of
1505.
Another draft constitution was prepared and published in May, 1939, by
J. L. Abalo.59 In 1939, Eloy G. Merino Brito prepared, under the authori-
zation of a presidential decree dated June 2, 1938, an annotated edition
of Articles 38 and 84 of the 1935 constitution and the Laws of March 31,
1903 and of March 17, 1922, covering appeals on the ground of unconsti-
tutionality.60 This carries brief abstracts of case-law. In 1939, Alberto
Sanchez Ocejo, president of the Bar Association of Giiines, published a
study of the comparative law and historical aspects of the reform of the
constitution.6"
An edition of the draft of the new constitution presented to Congress in
1936, was published by Gustavo Guti6rrez y SAnchez.62 Two drafts of a
new constitution for Cuba were published, one in 1939 by Anastasio
Fernandez Morera63 and the other by Antonio Barreras y Martinez
in 1940.6
A new constitution was adopted on July 1, 1940, by the Constitutional
Congress then in session. It was promulgated at Havana on July 5, and
took effect on Oct. 10, 1940." The constitution of 1940, articles 21 and 22,
permits retroactive laws to be passed, but lays down certain conditions in
connection therewith. However, appeal is allowed to the Tribunal de
garantias constitucionales y sociales. Nor may laws have retroactive effect
as regards obligations of a civil character arising from contract (art. 23).
The Civil Code (Art. 3) provides that laws shall not have retroactive effect
unless they specifically so provide. In case of a grave national crisis, how-
ever, the exercise of rights derived from civil contracts may be suspended
by Congress under the same conditions set forth in Article 22 for the
retroactivity of law.

Abalo, J. L.: La forma ticnica-functional de gobierno. Proposicidn a la tercera
constituyente cubana. Habana, Jesis Montero, 1939.
Merino Brito, Eloy G: El recurso de inconstitucionalidad y su jurisprudencia.
Habana, "Cultural," 1939. The text of the Ley de inconstitucionalidad of March
17, 1922 is in Leyes y Decretos, vol. 42, p. 18.
Sanchez Ocejo, Alberto: Proyecto de reform constitutional. Habana, Jesis
Montero, 1939. (Monografias juridicas Vol. XX), 132 p.
"Gutierrez y Sanchez, Gustavo: Proyecto de nueva constitucidn para la Re-
pdblica de Cuba, (con el proyecto del Congreso de 1936). Habana, 1940. 127 p.
SFernandez Morera, Anastasio: Proyecto de constitucidn de la Repdblica de
Cuba. Sti-Spiritus, Imp. "Venus," 1939. 102 p.
"Barreras y Martinez, Antonio: Proyecto de constitucidn de la Repuiblica de
Cuba (poder judicial). Pinar del Rio, Imp. "La Comercial," 1940. 36 p.
SThe text is contained in the collection Leyes Civiles de la Repblica de Cuba
by Mariano Sanchez Roca, Rafael P6rez Lobo and Calixto Ruiz Sierra, published
in 1940. See note 90, p. 19.









CONSTITUTIONAL LAW


TIn :1940, a compilation was published by Antonio Barreras y Martinez,
judge of the provincial court of Pinar del Rio, containing the texts of the
constitutions of Cuba.66 The author's prologue contains a sketch of the
constitutional history of Cuba. This work was divided into four parts
containing respectively: the constitutions of the Spanish monarchy, the
constitution of the Cuban revolutionary governments, the constitution of
Santiago de Cuba (Leonard Wood), and the constitutions of the Cuban
Republic. The work closes with the text of the Constitution of 1940.
The new Constitution of 1940 has appeared in several editions. One
forms vol. II of the Coleccidn Legislativa Cubana.67 The Department of
State of Cuba issued an edition."6
An analysis of the Constitution of 1940 and of the laws related to it or
affected by it was made by Juan Bautista Mor6 y Benitez, a municipal
judge.69 The text of the constitution is given, followed by a commentary
in which the related laws are described. There is an index in which the
laws are classified by subject-matter followed by reference to the articles of
the constitution to which they are related, and an alphabetical index of
subject-matter.
A compilation of the text of the Constitution of 1940, with the debates
in the Constitutional Convention, has been published in three volumes by
Andres M. Lazcano y Maz6n, magistrate of the Audiencia of Havana.70
The text of each article is printed, followed by the discussion, explanations
of the Coordinating Commission and notes of the session in which it was
approved. Each volume contains an alphabetical index to the subject-
matter of the constitutional provisions discussed in it. This work was
accompanied by a volume containing an index to the subject-matter of
the text and of the debates included in the foregoing volumes.71 It also
contained an analytical index of the subjects discussed in the debates, with
the names of the delegates participating, followed by the complete text
of the constitution.
A new edition of the Constitution of 1940, with an alphabetical index,
was published in 1941 by Gustavo Guti6rrez Sanchez, president of the

"Barreras y Martinez, Antonio, Textos de las constituciones de Cuba (1812-
1940). Habana, Ed. "Minerva," 1940. 622 p.
"Constitucidn de la Repdblica de Cuba. Habana, Jes6s Montero, 1940.
SConstitucidn de la Repdblica de Cuba, en vigor desde el dia 10 de Octubre de
1940. Habana, "Cultural," 1940. 104 p.
Mor6 y Benitez, Juan Bautista, Leyes complementarias de la constituci6n. La
Habana, Cultural, 1941. 191 p.
7 Lazcano y Maz6n, Andr6s Maria, Constitutidn de Cuba, con los debates sobre
su articulado y transitorias, en la Convencidn constituyente. 2 vols. Habana,
"Cultural," 1941.
"Lazcano y Maz6n, Andres Maria, Dicciondrio de la constitucidn: texto de la
constituci6n de la Reptlblica de Cuba. Habana, "Cultural," 1941.










LAW AND LEGAL LITERATURE OF CUBA


House of Representatives.72 The introductory chapters of this work deal
with the spirit of the Constitution and other topics, and contains a critical
study by the author. It also contains a summary of the proceedings of
the Constitutional Convention, and the text of other acts adopted by the
Constitutional Convention, particularly that entitled Organizaci6n de las
Magistraturas del Estado, Provincias y Municipios.
In considering the Constitution of 1940 as a whole, Guti6rrez Sanchez, a
staunch supporter of the social ideas on which the Constitution is founded,
calls it "an index to and a program for the complicated aspirations and
exigencies of present day life." 73
"The Constitution of 1940 does not belong to the old type of rigid
constitutions and therefore, we may classify it, within the traditional
definitions, as an open constitution Created in the light of the full
comparison of the various opinions in the country, it has struck a balance
among them that makes possible all the social, political and economic
progress of a modem state." 7'
Several interesting articles on aspects of the Constitution of 1940 have
been published. Among them may be mentioned Mario Nin Abarca's
study of the plea of unconstitutionality under this Constitution,75 and
Antonio Lancis's study of political parties.76
In 1941, Juan Clemente Zamora y L6pez prepared the first volume of
a text on constitutional law in general,77 published by the Law Faculty
of the University of Havana.
In 1942, Ram6n Infiesta, professor of Constitutional Law in the
University of Havana, published a text on Cuban constitutional history
for the use of students in the Faculty of Social Sciences and Public Law
of the University.7' This work is divided into three parts: I. The forma-
tion- of Cuban constitutionalism; II. The political ideas; III. The Con-
stitution of 1901. In Chap. IV of Book II the author treats of the con-
stitutional drafts of the revolutionary period, the texts of which are given
in the appendixes. The provisional constitution of General Wood (Gen-
eral Order of Oct. 20, 1898); the instructions of President McKinley to

Gutierrez y SAnchez, Gustavo, Constituci6n de la Repiblica de Cuba. Habana,
Editorial "Lex", 1941. 364 p.
Id. p. 40.
"Id. p. 40.
"Nin Abarca, Mario: "El recurso de inconstitucionalidad en la constituci6n de
1940," Rev. cub. de der., Oct., Dec. 1941, afio XV, no. IV, pp. 485-506.
Lancis, Antonio: "Las partidas political en la constituci6n vigente," Rev. cub.
de der.
Zamora y L6pez, Juan Clemente: Manual de derecho constitutional. I. Parte
General Habana, Carasa y cia., 1941.
Infiesta, Ram6n: Historia constitutional de Cuba. Habana, Ed. "Selecta In-
dustria," 1942. 383 p.









CONSTITUTIONAL LAW


the Secretary of War (July 18, 1898); and the treaty of peace between the
United States and Spain, are also contained in the appendixes.
A study in the comparative constitutional law of the Americas was pub-
lished in 1942 by Andr6s Maria Lazcano y Maz6n in two volumes.79 This
contains the text of the Cuban constitution of 1940 and the texts of the
present constitution of each of the other American republics, including the
United States of America. The author also analyzes and compares the
texts of the various constitutions under the following heads: sovereignty,
form of government, the Executive, the Legislature, the Judicial Power,
individual guarantees, amendments, domestic relations, education, labor,
and property. There is a general index to the constitutions in the form
of tables under each of the above heads. Translations into English of the
various constitutions of Cuba have been published by the Lewis Loose-Leaf
Law Service of the Laws of Cuba.80

HABEAS CORPUS

An historical sketch of the incorporation and development of this institu-
tion in Cuban law is given in Diego Vicente Tejera's study, the second
edition of which was published in 1927.81
The writ of habeas corpus was introduced into Cuban law by Order 427
of Oct. 15, 1900, issued by the American military government. This order
declared that "a person imprisoned or deprived of his liberty within the
Island of Cuba, for any cause or upon any pretense, except where he has
been committed or is detained by virtue of the judgment of a competent
judge or tribunal, is entitled to a writ of habeas corpus." The order then
goes on to prescribe how and to whom application for the writ should be
made, when the writ must be granted, its form, its return, how and when
bail may be ordered, when an order may be given restraining the prisoner
from leaving the Island of Cuba, etc. The provisions of this order went
into effect on Dec. 1, 1900, and all conflicting laws were declared
abrogated.

Lazcano y Maz6n, Andrds Maria: Constituciones political de Amdrica. 2 vols.
Habana, "Cultural," 1942.
SHabana. H. L. Lewis. Translations made under authority of Presidential De-
cree 1685 of Nov. 9, 1927.
The constitution of the Republic of Cuba (as amended May 9, 1928). Constitu-
tional Law of the Provisional Government of Cuba (Gaceta Oficial). Special ed.
no. 10, Feb. 3, 1934.
Constitution of the Republic of Cuba, June 11, 1935.
Constitution of the Republic of Cuba (July 5, 1940).
"Tejera y Garcia, Diego Vicente: El habeas corpus. 1' ed. Habana, Imp. de
Rambla, Bouza y cia., 1921. 136 p. 2' ed. Madrid, Ed. Reus, 1927. 146 p.









LAW AND LEGAL LITERATURE OF CUBA


According to Tejera, then the Fiscal of the Audiencia of Matahzis, the
text of the Order 427 is an exact reproduction of the habeas corpus
statute of the State of New York, and was one of the few orders of the
military governor which was not drafted by Cuban jurists. This author
takes the view that it is out of keeping with the basic Spanish law of
Cuba, which provided all the protection found in the writ of habeas corpus,
and that the law has been very imperfectly applied in Cuba. He goes on
to give the English text of the Cuban law in parallel columns with the
text of the New York law. He also includes quotations from opinions
handed down by the Cuban Supreme Court.8"
A chapter on the habeas corpus was included by Francisco Llaca y
Argudin in his treatise on criminal procedure in Cuba.83 This is an
interpretation of Order 427.

LAWS GOVERNING SUFFRAGE AND ELECTIONS

AN ENGLISH translation of the electoral law of June 26, 1890, was
published by the U. S. War Department, Division of Customs and
Insular Affairs in 1899.84
An electoral law was enacted Sept. 11, 1908, and its text, as amended by
the Law of May 4, 1910, was officially published in 1910.85 This contains
an alphabetical index of the subject-matter of the law. In the same year,
Enrique Hernandez Cartaya, professor of Administrative Law in the
University, published an analysis of the law.6"
A collection of decisions of the Central electoral board was published
in 1914.87
An Electoral Code was adopted by the Congress and promulgated by
President Menocal on Aug. 8, 1919. The text of the Code, which was in
348 articles, together with forms and an index,-was published in 1919, the
text being that of the Gaceta Oficial of Aug. 12, 1919.88

The New York model for the habeas corpus law was the Code of Civil Pro-
cedure (1876), Sections 2015-2066, probably as amended slightly through 1909.
[G. I.]
Llaca y Argudin, Francisco: El procedimiento correccional en Cuba. 2 vols.
Habana, Imp. de Rambla, Bouza y cia., 1924.
Translation. Adaptation of the Electoral Law of June 26, 1890, to the Islands
of Cuba and Porto Rico. Washington, Gov't. Print. Off. 1899. 23 p.
"Ley electoral de Cuba. Habana, Imp. de Rambla, Bouza y cia., 1910.
M HernAndez Cartaya, Enrique: El regimen electoral de la Reptblica de Cuba.
Habana, Imp. "La Moderna Poesia", 1910.
"Jurisprudencia electoral; resoluciones y acuerdos dictados por la junta central
electoral y por el poder judicial y el ejecutivo hasta 30 de junio de 1914. Habana,
Imp. de Rambla, Bouza y cia, 1914. 149 p.
Cddigo electoral. Habana, Imp. de Rambla, Bouza y cia, 1919. 312 p. Also:
C6digo electoral. Habana, Carasa y cia., 1930. 527 p.









ADMINISTRATIVE LAW


In 1935, there was promulgated Decree-Law 54 which contained a new
Electoral Code, which served for the elections of Jan. 10, 1936. This was
followed by a Cddigo electoral de emergencia for the elections of March 5,
1938. An analysis of the latter in the form of a "Dictionary" was pub-
lished by Carlos M. Moran in 1938.89 A permanent Tribunal Superior
Electoral was created by this code (Art. 5).
A new Electoral Code was enacted by Congress and promulgated by
President Federico Laredo Bru.90 The text of this Code, as modified by
the Law of May 26, 1939, was published by Rauil A. Masvidal, President of
the Junta Municipal Electoral, in 1939.91 This Code contains 364 articles.
A digest of the decisions of the Supreme Court construing the Electoral
Code of April 15, 1939, was compiled and published in 1942 by Carlos M.
Piedra y Piedra, one of the justices of the Supreme Court, and Arturo
Men6ndez y Carballo, Secretary of the Tribunal Superior Electoral.92 The
decisions are classified under the various subjects of the Electoral Code.

ADMINISTRATIVE LAW
HISTORY AND TEXTS

B Y THE Constitution of 1901 the Cuban government was set up under
the classic theory of the separation of powers. The Constitution of
1928 did not alter this system. Sovereignty resided in the people and their
will was expressed through the legislative bodies elected by direct popular
vote (the Constitution of 1928 introduced proportional representation into
the Senate).
The legislative power resides in a bicameral Congress. The term of
office in the Senate is four years, in the House of Representatives, two.
(Art. 119). The Executive power is to be exercised by the President of
the Republic with the aid of the Council of Ministers. The President
shall also have the directing and moderating power and shall act for the
national solidarity. (Art. 120). The actual power that has been wielded
by the executive in Cuban history is thus formally recognized. The
Council of Ministers, with a Prime Minister chosen by the President, is a
Cabinet presided over by the President. (Arts. 151, 154). These min-
isters or cabinet members are personally liable for acts that they legalize
and are solidarily liable for those which they authorize jointly. (Art. 158).

Moran, Carlos M.: Diccionario electoral. Habana, "Cultural," 1938. 440 p.
Published in the Gaceta of April 22, 1939.
"Masvidal, Ra6l A.: Cddigo electoral anotado. Habana, "Cultural," 1939.
589 p.
92 Piedra y Piedra, Carlos M., and Menendez y Carballo, Arturo: Jurisprudencia
contencioso-electoral. Habana, P. Fernandez y cia., 1942. 141 p.









LAW AND LEGAL LITERATURE OF CUBA


They are criminally liable before the Supreme Court for crimes committed
in the exercise of their offices. (Art. 159). The ministries of Education,
of Health and Public Welfare, of Agriculture and of Public Works are to
act exclusively as technical bodies (Art. 160). The Council is respon-
sible to both houses of Congress, which may act on a vote of confidence
either to dissolve it or continue it. (Art. 164).
The system of courts provided for in this Constitution is described in
the section on "Courts and Judges." It is sufficient to indicate here that
among the special courts provided for are: The Court for Social and
Constitutional Guaranties; the Superior Electoral Court; the Superior
Council of Social Defense and the Courts for Juvenile Delinquents.
Local government is provided for in great detail, concerning specifically
the municipios and their relations with the federal government, (Arts.
209-232) and the provinces (Arts. 233-250). "The provinces and town-
ships shall exercise their own functions, in aid of the aims of the State."
(Art. 118).
A special section of the constitution is devoted to the "state of emer-
gency," which may be declared to exist*by Congress at the appeal of the
Council of Ministers. (Art. 281). During the state of emergency the
Council of Ministers may exercise the functions that Congress especially
delegates to it; but the legislative provisions adopted by the Council must
be ratified by Congress if they are to remain in effect after the termination
of the state of emergency. (Art. 282).
In this manner, the new Constitution tries to provide for the realities
of the Cuban political and social situation, as understood by Cubans.
Lancis makes this comment:
"In specific reference to the Cuban state, the constitution now in force
sets forth, as the purpose of the organization of the country as a democratic
and unitary republic, 'the enjoyment of the blessings of political liberty and
social justice and the furtherance of the welfare of the community and the
individual.' These are principles which in the realm of government may
be translated into the development of means by which the State guar-
antees and regulates the exercise of individual rights; organizes and applies
the means of public aid and charity; and recognizes and respects the prin-
ciples of social advancement; requiring obedience to rules of universal
application and observing the faithful application of treaties and agree-
ments concluded by the State." 9
The broader social responsibilities assumed by the Cuban government
may be observed in the long sections of the new Constitution devoted to the
family and national culture (Arts. 43-59) and to labor and private prop-

Lancis y Sanchez, Antonio: Derecho administrative. Habana, Universidad de
la Habana, 1942, p. 8.









ADMINISTRATIVE LAW


erty (Arts. 60-96). This assumption of greater responsibility carries with
it an inevitable intrusion upon individual's rights. Lancis comments on
this conflict thus:
"As Mirk6ne-Guetzevitch has observed, 'at the moment a curious fact
may be observed: the introduction of social elements into the declaration
of rights and the extension of individual rights in the social group has not
been limited merely to the reciprocal relations between labor and capital
but also tend to engulf all of life in common (family, school, etc.), that is
to say, all the conjunction of social relationships.
"Such a change in concept may also be observed in Cuba, if one com-
pares the text of the Constitution of 1940 with that of 1901. While the
latter text and those that followed it, inspired by a common source, had
for their ideal the position of the individual armed with various rights
in opposition to the State, that of 1940, does not intend, like these, to limit
the action of public authority in relation to individuals, but instead attempts
to use the intervention of the Public Powers as a means to satisfy all social
needs, thus extraordinarily enlarging the role of Government and limiting
the role of the individual." 95
Cuba, as a Spanish colony was governed by a Captain-General, usually
a Lieutenant-General of the Spanish Army, and a Junta de Autoridades,
which included a second officer in command, a treasurer, a secretary-
general, a secretary of naval affairs, an attorney-general, the Bishop of
Havana, and the Civil Governor of Havana. On November 25, 1897,
however, by the decree granting autonomy to Cuba, Spain provided a
Cabinet to be made up of Cubans. This cabinet was to consist of a Secre-
tary of Grace and Justice; a Secretary of Finance; a Secretary of Public
Instruction; the head of a Department of Public Works and Means of
Communications; and the head of a Department of Agriculture, Industry
and Commerce."9 Cuba had also an Assembly or parliament, made up of
a Council of Administration and a House of Representatives, with the
"power to pass upon all matters not specially and expressly reserved to the
Cortes of the Kingdom or to the Central Government."
The administration of the Cuban government was taken over, on Jan.
1, 1899, from the Spanish Governor-General by General John R. Brooks.
He was succeeded in December, 1899 by General Leonard Wood. Wood's
chief reforms were in changes in the Department of Justice; the prepara-

Id. pp. 125-126. See also, for the background of economic and social prob-
lems that have led to the adoption of the Constitution of 1940, the report of the
Commission on Cuban Affairs, entitled Problems of the New Cuba. New York,
The Foreign Policy Association, 1935.
"The text of this decree in English may be found in Clifford Stevens Walton's,
The Civil Law in Spain and Spanish America. Washington, D. C., Lowdermilk
and Co., pp. 573-587.









LAW AND LEGAL LITERATURE OF CUBA


tion of a mercantile registry; the organization of municipal government;
the inauguration of a public school system; the reorganization of the Uni-
versity of Havana; and the carrying out of many public works, such as the
building of roads, telecommunication services, etc. The general form of
the administration of the government was apparently maintained.
Under the Constitution of 1901, a bicameral Congress was provided for,
made up of a House of Representatives and a Senate, a President, Vice-
President and Cabinet, and a system of courts that will be described else-
where. The principle of ministerial responsibility was affirmed. (Art.
78) Since it was (and always has been since independence) a unitary
republic, the entire Island was organized under the direct control of the
national government. It was divided into provinces each with a Gov-
ernor and a Provincial Council, locally elected. Municipalities 97 were to
oe governed by an, Ayuntamiento and a mayor, locally elected.
This general form of government remained intact in Cuba through the
second intervention of the United States and up to the present. The
Constitution of 1940, as has been indicated elsewhere, considerably ex-
panded the formal action of governmental bodies. The old cabinet became
the Council of Ministers, each minister having one or more undersecretaries.
The powers and duties of the provincial and municipal governments are
set forth in greater detail.

LITERATURE

GENERAL

A study of administrative law, as operative in Cuba under the royal
Spanish regime, was published in 1847 by Jos6 Maria Morilla.9 In 1882,
Antonio Govin y Torres published a treatise in three volumes on adminis-
trative law in Cuba, a work awarded a prize by the Circulo de Abogados in
a competition held that year." An old compilations of Spanish royal
decrees, and of some Cuban legislation, such as the Cuban Constitution,
was published in 1898 by Jos6 Raiil Sedano y Agramonte.1 The intention
of the author seems to have been to bring together the laws concerning the

It may be pointed out here that the term municipalidad more closely approxi-
mates township than municipality, in the Anglo-American concept.
Morilla, Jos6 Maria: Breve tratado de derecho administrative espaifol general
del reino y especial de la Isla de Cuba. Habana, Tip. de Don Vicente de Torres,
1847. 384 p.
" Govin y Torres, Antonio: Elementos teorico-prdcticos del derecho administra-
tivo vigente en Cuba. Habana, Miguel Alorda, 1882. 2a ed., Habana, Imp. "El
Siglo XX," 1914.
Sedano y Agramonte, Jos6 Rail: Legislacidn autotndmica. Habana, Tip. "La
Propaganda Literaria," 1898.









ADMINISTRATIVE LAW


government of Cuba in bridging the gap between the colony and the
Republic.
On Jan. 26, 1909, Charles Magoon, as Provisional Governor, approved
an Organic Law for the Executive branch of the government. An edition
of this was published the same year.2
New editions of this law were published, with annotations by Eduardo
Col6n in 1916, and in 1930.3
In 1920 a third edition of the text by Eduardo Rafael N6fiez y Nifiez
was published.4 Much of this work, however, has been superseded by the
provisions of the new constitution of 1940.
In 1922, Antonio Lancis y Sanchez and Joaquin Martinez Sa6nz col-
laborated on a series of essays to serve as a text.5 This has, however, been
replaced by the more recent text-book published by Lancis.6 In 1922,
also, Rafael GuAs E. Inclan published the first volume of a group of essays
on administrative law.'
An annotated edition of the Organic law of the Executive Power was
published in 1929 by Jos6 E. Maresma y Diaz.8 This is the Law 78, of
Jan. 25, 1909, promulgated by the Provisional Governor, Charles E. Ma-
goon. The text is accompanied by the exposicion de motives of the
Advisory Commission of Jan. 11, 1909. The author of this commentary
also collaborated with Luis Carmona y Castafioson a work on the Civil
Service law.9

SLey orgdnica del poder ejecutivo y reglamento para el gobierno de las secre-
tarias de despacho de la repdblica de Cuba. Habana, Imp. de Rambla, Bouza y
cia., 1909. 2' ed., 1916. 210 p.
Col6n, Eduardo, Ley orgdnica del poder ejecutivo y reglamento para el gobierno
de las secretaries de despacho de la repdblica de Cuba. Habana, Imp. de Rambla,
Bouza y cia., 1916. 282 p.; 2' ed. Habana, Imp. y Lib. "La Propagandista,"
1930. 286 p.
Nfiez y Ndiiez, Eduardo Rafael, Tratado de derecho administrative, con arreglo
al program del Profesor de la Asignatura en la Universidad Nacional, Dr. Enrique
Herndndez Cartaya. 2 vols. Habana, Imp. "Casa Gir6n," 1920. A new edition
was printed in 1926 in 2 vols., Imp. de J. Hernandez Lapido.
Lancis y Sanchez, Antonio, and Joaquin Martinez Saenz, Ensayos de derecho
administrative. Vol. I. Habana, Imp. de Rambla, Bouza y cia., 1922.
8 See note 36, page 94.
'Inclan, Rafael Guis E., Ensayos de derecho administrative. Habana, Imp. de
Rambla, Bouza y cia., 1922.
SMaresma y Diaz, Jos6 E., Ley orgdnica del poder ejecutivo y reglamento para
el gobierno de las secretarfas de despacho de Cuba; manual de consult con todas
las reforms y modificaciones introducidas en la ley desde 1909 hasta a fecha. Ha-
bana, Cultural, 1929. 355 p.
Carmona y Castafios, Luis, and Jos6 E. Maresma y Diaz, Ley del rervicio civil
de Cuba de enero 18 de 1909. Habana, A. Maresma 1911. 251 p.
535175-44--4









LAW AND LEGAL LITERATURE OF CUBA


Volume one of an encyclopedia of administrative law was published in
1933,10 by E. Rodriguez Herrera. This volume covered from "Abaceria"
to "Aduanas."
A modern treatise on administrative law is that by JuliAn M. Ruiz y
G6mez." This is a study of the Cuban administrative system in the light
of the present legislation.
Antonio Lancis y SAnchez, professor of Administrative Law in the Uni-
versity of Havana, has published a textbook on that subject for students
in the University.12 Each chapter of the text is preceded by a bibliography
and followed by references to the legislation mentioned in the text and to
judicial decisions. The author treats of the administrative activity, its
concept and manifestations, the public service, police, the rights and lib-
erties guaranteed by the Constitution of 1940, public order, suspension of
constitutional guarantees, and public security. In 1942, a new edition
appeared.'3 The supplement contains a list of legislation relating to the
subject since the colonial era and a chronological list of decisions of the
Supreme Court in cases involving constitutional questions and in proceedings
contencioso-administrativo. The two parts of the work are printed in a
single volume, with a single index to both parts.
In 1942, Mariano SAnchez Roca published a compilation of the admin-
istrative laws of Cuba.4 The first volume includes the following subjects:
Waters, ports and fishing; property of the State; contracts for public works
and services; live-stock; mines; forests and hunting. There is a general
index of the laws in chronological order and also of the administrative
resolutions and the judicial decisions. Each section is followed by an
alphabetical index of the subject-matter.

PROCEDIMIENTO CONTENCIOSO-ADMINISTRATIVO (PROCEEDINGS IN
WHICH THE GOVERNMENT IS A PARTY)

A special court for the trial of cases involving the government or appeals
against decisions made by administrative officials is a characteristic feature
of the judiciary of Latin American countries. In Cuba, which, before

o Rodriguez Herrera, E., Enciclopedia cubana juridico-administrativa. Habana,
Arellano & cia., 1933.
Ruiz y G6mez, Julian M., Principios generals de derecho administrative.
Habana, "Cultural," 1933. 529 p. (Biblioteca de la Revista Cubana de Derecho.
Serie A. TomoV).
"Lancis y Sanchez, Antonio, Derecho administrative (Curso de 1941-1942)
Habana, Universidad de la Habana. 1941.
Id. Habana, Imp. Cirdenas y cia., 1942: 646 p.
Sanchez Roca, Mariano, Leyes administrativas de le Repuiblica de Cuba y su
jurisprudencia. Vol. 1. Habana, Ed. "Lex", 1942.









ADMINISTRATIVE LAW


its independence, was governed by a law of 1888, amended in 1892, such
a case would be tried before a local court created for the purpose, and
appeals would be tried before the Tribunal de lo Contencioso-Admin-
istrativo in Madrid.
The period of the military intervention of the United States saw certain
reforms made in this system. Order 33 of April 1, 1899, of the Military
Governor suppressed the local court de lo Contencioso-Administrativo and
transferred the jurisdiction over these cases to the Sala de lo Civil de la
Audiencia de la Habana. By Order 88 of the same year, the Audiencias
were reorganized and this Court became the Sala de lo Civil y de lo
Contencioso-Administrativo.
An annotated edition of the Spanish Law of 1888 and its Regulations,
with supplementary legislation, was published in 1907 by Angel C. Betan-
court y Miranda.15 This legislation, except where modified by orders
of the Military Governor, remained in effect in Cuba after the withdrawal
of Spain. Betancourt published a new edition in 1916, bringing his
annotations up to date.10
Another edition of the legislation on the subject of procedure in such
cases was prepared in 1931 by Gustavo Ramirez Olivella.17 This edition
is based upon and includes matter from Betancourt's edition, as well
as decisions handed down by the Supreme Court of Cuba.
Decree-Law 3001 of Dec. 1, 1933, was enacted to correct real injustices
frequently arising out of the nature of the circumstances prevailing at
the time the Law of Sept. 13, 1888, regulating contentious-administrative
procedure, was promulgated. The changes introduced by this Decree-Law
tend, principally, to make the procedure simpler.1
The most recent treatise is that published by Jos6 Clemente Vivanco
Hernindez in 1937.19 This contains elaborate annotations after each
article of the Law and Regulations of 1888, and discussion of interpretative
material, such as judicial opinions, foreign law, etc.
In 1929, Angel C. Betancourt y Miranda, President of the Supreme
Court, published a compilation of opinions handed down by the Supreme

Betancourt y Miranda, Angel C., Procedimiento contencioso-administrativo
vigente en la Repiblica de Cuba. Habana, Imp. de Rambla, Bouza y cia., 1907.
127 p.
S-, Nueva edicidn del Procedimiento contencioso-administrativo vigente
en la Republica de Cuba. Habana, Imp. de Rambla, Bouza, y cia, 1916. 251 p.
Ramirez Olivella, Gustavo, Legislacion contencioso-administrativa con toda la
jurisprudencia estableciada por el tribunal supremo de Cuba desde su creacidn hasta
la fecha. Habana, Imp. de Rambla, Bouza y cia., 1931. 192 p.
' The Lawyers' Directory, 1941, p. 1668. Philadelphia, Sharp & Alleman Co.
1D Vivanco HernAndez, Jos6 Clemente, El juicio contencioso-administrativo. Ha-
bana, Jesis Montero, 1937. 518 p. (Biblioteca Juridica de Autores cubanos y
Extranjeros. Vol. 39.)









LAW AND LEGAL LITERATURE OF CUBA


Court of Cuba during 1899-1918.20 This is in the form of a dictionary,
with the material placed under subject-headings alphabetically arranged.
Gustavo Ramirez Olivella carried on this idea with his Diccionario de
Jurisprudencia contencioso-administrativo, the second volume of which
appeared in 1939.21 The first volume covers the period from the creation
of the Supreme Court to. 1932. The second volume covers the years
1933-1937.
MUNICIPAL LAW

An old work on the colonial laws for Cuban municipalities is that
compiled by Juan Jos6 Sanchez y Guerrero.22
In 1899, the Division of Customs and Insular Affairs of the U. S. War
Department published a translation of the municipal laws in force in Cuba.23
In 1905, there was published a work on the history of municipal law of
Cuba by F. Carrera y Justiz.24 The second volume traces the history of
the municipalities from colonial times to the enactment of the Spanish
Organic Law of Municipalities of Oct. 2, 1877. The first volume contains
a study of the Roman and the Spanish municipalities. The appendix
contains Spanish colonial laws relating to municipalities.
An Organic Law of Municipalities in Cuba was enacted May 29, 1908,
and the text appeared the same year.25 A law of municipal accounting
was enacted on Sept. 21, 1908.26
Antonio M. Reyes y P6rez published in 1911 a monograph on public
servitudes.27 This dealt with the power of the municipalities, under Article
126 of the Organic Law of Municipalities, to open or close roads. The
Organic Law had been amended by Decree 917, of the Provisional Gov-
ernor in 1908. The first part of this work treats of the doctrine regarding

0 Betancourt y Miranda, Angel C., Jurisprudencia cubana; parte civil y con-
tencioso-administrativo. 2 vols. Habana, Imp. de Rambla, Rouza y cia, 1929.
Ramirez Olivella, Gustavo, Dicionario de Jurisprudencia contencioso-adminis-
trativo. 2 vols. Habana, Jesfs Montero, 1933-1939. (Biblioteca Juridica de
Autores Cubanos y Extranjeros. Vol. 54.)
Sanchez y Guerrero, Juan Jos6, Leyes provisionales municipal y provincial de
la Isla de Cuba, concordadas y anotadas con las de 2 de octubre de 1877 vigentes
en la peninsula. Habana, Imp. "La nueva principal," 1881. 459 p.
2 Translation of the Municipal and Provincial Laws in force in the Island of Cuba.
Washington, Gov't. Print. Off., 1899. 71 p.
Carrera y J6stiz, Francisco, Introduccidn a la historic de las instituciones locales
de Cuba. 2 vols. Habana, "La Moderna Poesia", 1905.
5 Ley orgdnica de los municipios de Cuba. Habana, Imp. de Rambla, Bouza y
cia, 1908.
"Ley de contabilidad municipal de Cuba de setiembre 21 de 1908. Habana, Imp.
Rambla, Bouza y cia., 1908.
Reyes y Perez, Antonio M., Las serventias pziblicas en el derecho vigente.
Habana, Imp. de Rambla, Bouza y cia., 1911. 236 p.









ADMINISTRATIVE LAW


public servitudes, and the second contains the text of laws and decrees, and
decisions of the Executive Power and of the courts relating to servitudes.
The index gives a list of the decisions in chronological order.
A lecture by F. Carrera y J6stiz delivered in the Atheneum of Havana,
in 1913, was printed in that year under the auspices of the Association of
Doctors of Public Law.28 This gives an account of the history of legis-
lation respecting the municipalities in Cuba, and contains an analysis of
Decree 518 of May 19, 1908, called the Municipal Code of Cuba.
In 1929, Mariano Aramburo y Machado published a draft for a
municipal code.29 F. Carrera y J6stiz in 1933 prepared a text-book on
the science of municipal government." An earlier work on the same
subject had been published by him in 1923.31
Andr6s Angulo y P6rez, a professor in the University, was the author of
a commentary on Cuban municipal law and comparative municipal law.82
In 1936, he published a collection of essays on various municipal topics.83
The same author also prepared in the succeeding year a monograph on
the municipality in American constitutions,84 and a work on Municipal
Government.3
Among the theses published on municipal law is one by Adriano G.
Carmona Romay in 193736 and one by Jos6 Portuondo y de Castro.8'
Juan M. Ferrer y Alonso published in 1938 a compilation of municipal
tax laws."3
Augusto Venegas Muifia and Augusto Venegas Pazos have compiled
four volumes of court decisions in regard to Cuban municipalities, handed

Carrera y J6stiz, Francisco, El derecho pdblico y la autonomla municipal. El
fraude de un regime. Habana, "La Moderna Poesia," 1913.
Aramburo y Machado, Mariano, Proyecto de cddigo municipal. Habana, Imp.
de Rambla, Bouza y cia., 1929.
80 Carrera y J6stiz, Francisco, Preliminares de ciencia municipal urbanismo. Ha-
bana, "Cultural," 1933.
Imp. "La Prueba", 2 vols. 1923..
Angulo y P6rez, Arndr6s, Derecho municipal comentado y comparado. Habana,
Imp. "Cuba Intellectual", 1935.
Temas municipales. Habana, Imp. "Cuba Intellectual", 1936.
148 p.
-- Municipio constitutional en Amirica. Habana, Imp. "Cuba In-
tellectual", 1937. 75 p.
"-- Cuestiones prdcticas de gobierno municipal. Vol. I. Habana,
Imp. "Cubana Intellectual", 1937.
Carmona Romay, Adriano G., El urbanismo en la docencia universitaria. Ha-
bana, Imp. H. C. (?), 1937.
Portuondo y de Castro, Jos6, La organizacidn del Distrito Central. Habana
"La Propagandista", 1937.
Ferrer y Alonso, Juan M., Leyes de impuesto y apremios municipales. Habana,
S"Cultural," 1938. 395 p.









LAW AND LEGAL LITERATURE OF CUBA


down between 1932 and 1936. The first volume contains the Organic
Law of Municipalities and other laws modifying it with all the decisions
construing it of the Supreme Court. The second volume contains the Law
of Municipal Taxes and Procedure for Collection. The third volume,
published in 1941, contains the Law of Municipal Accounting, enacted by
Decree 927 of Sept. 21, 1908, with decisions of the Supreme Court and all
laws and resolutions modifying it." The fourth volume, published in
1938, deals with serventias y caminos vecinales.
In 1940, Ramiro Capablanca y Graupera published a monograph on the
municipal regime as considered by the Constitutional Convention.39a
A compilation of laws relating to the municipalities was published by
Mariano Sanchez Roca in 194 1.39b This contains the text of those articles
of the Constitution which relate to the municipalities; the Organic Law of
the Municipalities (Ley orgdnica de los municipios) and supplementary
legislation. There "is an alphabetical index by subject-matter; a chrono-
logical index to the laws included in the collection; a chronological list
of the decisions of the Supreme Court on municipal law; and a general
index. There are included also the provisions of various laws regarding the
registry of aliens.
In 1941, another work on the city manager by Francisco Carrera y
Juistiz was published.40 A monograph by Pedro Vald6s Blanco, containing
a digest or abstract of the provisions of laws relating to municipalities,
appeared in 1942.41 The appendix contains the text of several laws and
decrees relating to municipalities.

CIVIL SERVICE
A Civil Service Law for Cuba was enacted Jan. 18, 1909.42 A com-
mentary on this law was published in 1911 by Louis Carmona y Castafios

SVenegas Muiiia, Augusto, and Augusto Venegas Pazos, Los municipios cubanos
a travis de la jurisprudencia. Habana, Jes6s Montero, 1938. Vol. VIII, Ley
Orgdnica de los Municipios, vol. I, 1932. 2" ed. 1941. Vol. XII, Ley de Im-
puestos Municipales, vol. II, 1934. Vol. LVIII, Ley de Contabilidad Municipal,
vol. III, 2a ed. 1941. Serventlas pdblicas y caminos vecinales. In preparation
(1941). IV.
a Capablanca y Graupera, Ramiro, El regimen municipal ante la convencidn
constituyente. Habana, "Cuba Intellectual", 1940. 59 p.
..b Sanchez Roca, Mariano, Legislacidn municipal de la Repdblica de Cuba.
Habana, Imp. "Alfa", 1941. 584 p.
Carrera y Jistiz, Francisco, El gerente del municipio. Una nueva carrera pro-
fessional en Cuba. Habana, Universidad de la Habana, 1941.
Valdes Blanco, Pedro, Prontuario juridico municipal: Habana, Jesis Montero,
1942. 54 p.
Ley del servicio civil de Cuba de enero 18 de 1909. Habana, Imp. de Rambla,
Bouza y cia., 1909. 29 p.









COURTS AND JUDGES


and Jos6 E. Maresma y Diaz.4a By a Decree 1605 of Sept. 16, 1933,44 the
Civil Service Commission law was suspended and also many articles in
the Law of Judicial Power.
A compilation of legislation regarding pensions for public employees
has been published in two volumes by Francisco Llaca y Argudin.45
PUBLIC UTILITIES
Decree-Law 150 of 1934, fixed electric and gas rates in the entire
Republic.46
By Decrees 708 of November, 1934, and 745 of April, 1936, there was
established a commission or bureau to regulate public utilities.
Decree-Law 256, of May 26, 1934, relates to the "gold clause" in
concession contracts as a basis for fixing rates.
The Public Works Law of July 15, 1925, gives a list of the works con-
sidered as of national public utility throughout the Republic. The Regu-
lations of this law were embodied in Decree 1517, of July 15, 1925, and
Decree 1956, of Sept. 14, 1925.47

COURTS AND JUDGES
ACOMPILATION of legislation on the judicial system in colonial
times was made under a Royal Decree of the Spanish Government
of Jan. 5, 1891. It is divided into 519 articles and provides for the per-
sonnel and organization of the Inferior and Superior Courts of the Island
of Cuba, Puerto Rico and the Philippines. The introduction, by Ram6n
Sanchez de Ocafia, gives the history of the court system from colonial times
and describes the system existing just prior to the independence of Cuba
from Spain. A translation into English was made and published by the
U. S. War Department in 1891.48

Carmona y Castafios, Luis, and Jos6 E. Maresma y Diaz, Ley del servicio civil.
Habana, Tip. de Maresma P6rez, 1911. 251 p.
Gaceta official. Sept. 16, 1933.
~ Llaca y Argudin, Francisco, Legislacidn sobre jubilaciones y pensions de funcion-
arios y empleados pdblicos. 2 vols. Habana, Imp. de Rambla, Bouza y cia,
1926-1936.
*"The law governing electric power plants was published in the Gaceta Oficial,
May 17, 1924. Ley sobre concesiones elictricas para servicio piblico. Habana,
Imp. de Rambla, Bouza y cia., 1924. 5 p.
"An English translation was published by the Cuban government: Public Works
Law, under the Administration of Hon. Presdt. General Gerardo Machado, Carlos
M. de Cespedes, Secretary of Public Works. n. p. 1925. 2 p.
SCompilation of the Organic Provisions of the Administration of Justice in force
in the Spanish Colonial Provinces and Appendices relating thereto, Washington,
D. C. U. S. Gov't. Print. Office, 1891.
A paper on "The Supreme Court of Santiago de Cuba", by Clark Bell, "with the
collaboration of the judges of that court" was presented in March, 1899, issue of
the Medico-Legal Journal and later reprinted.









LAW AND LEGAL LITERATURE OF CUBA


The present system of courts in Cuba dates from the reconstruction of
the judicial system made by John R. Brooke and Leonard Wood, Military
Governors after the Spanish-American War. A judicial hierarchy was set
up, with a Supreme Court at the top, six provincial superior courts (audi-
encias), and courts of first instance and municipal courts, together with
police courts (after the United States pattern) in Havana, and all parts
of the Island; and poor persons' counsel. An attempt was made to intro-
duce the jury system, but this failed for want of a sufficiently large
reservoir of literate citizens from which to draw.
In 1909, Manuel V. Cafiizares published a volume on the judicial system
as it stood at that time.49
A two-volume collection in synthesis form of legislation bearing on the
organization of the Cuban municipal court system, made by Luis F.
Nifiez y Gallardo, appeared in 1914.50
The addresses made by the presidents of the Cuban Supreme Court at
each opening session of the court from 1909 to date, have been published
in Havana. Presidents of the court for this period were: 1909-December,
1913, Juan Bautista Hernindez y Barreiro; Dec. 19, 1913 to June 9, 1917,
Jos6 Antonio Pichardo; June 15, 1917 to June 16, 1921, Jos6 Antolin del
Cueto y Pazos; June 22, 1921 to March, 1925, Angel C. Betancourt y
Miranda; May 15, 1925 to April 11, 1932, Juan Guti6rrez y Quir6s;
April 15, 1932 to August, 1933, Jos6 G. Clemente Vivanco y HernAndez;
August 26, 1933 to date, Juan Federico Edelmann y Bovira.
In 1923, the third edition of Francisco Llaca y Argudin's study of the
courts of Cuba during the period from 1899 to 1922, was issued.51 This
is a compilation of the law on the subject, with brief sketches of the history
of the court system since 1899. It includes also a list of the judges who
have sat on Cuban tribunals since that date.
In 1928, an edition of the Organic Law of the Judiciary, originally
adopted in 1909, was published as amended up until that date.52 In the
same year Juan Sierra Jim6nez prepared a manual for clerks of municipal

Caiiizares, Manuel V., Division judicial y organizacidn de tribunales de la
Repuiblica segin la ley orgdnica del poder judicial y lisposiciones posteriores. Ha-
bana, Imp. de Rambla, Bouza y cia., 1909. 91 p.
"o NGiez y Gallardo, Luis, Los juzgados municipals al alcance de todos. 2 vols.
2" ed., Habana, Lib. "Nueva" de J. Marlon, 1916, 14.
SLlaca y Argudin, Francisco, Organizacidn de los tribunales de Cuba y su per-
sonal. desde 1" de enero de 1899 hasta 31 de diciembre de 1922. 3 ed. Habana,
Imp. de Rambla, Bouza y cia., 1933. 321 p.
"Ley orgdnica del poder judicial de la Repiblica de Cuba conteniente todas las
reforms hechas hasta septiembre de 1927 por las leyes modificadoras de cada
articulo. Habana, Imp. de Rambla, Bouza y cia., 1928. 126 p.









COURTS AND JUDGES


courts.58 This contained a digest and analysis of existing law in criminal
matters within the jurisdiction of the local municipal courts. It also
contains forms for use in civil matters, in oral proceedings, the application
of the Workmen's Compensation Law of June 12, 1916, voluntary juris-
diction, territorial delimitation, etc. In 1930, the same author prepared
a similar handbook for the judges in the municipal courts.54 In 1934, he
prepared a similar manual for police court officials.5
Andr6s Maria Lazcano y Maz6n, Judge of the Court of First Instance
of Guanajay, published in 1931, an annotated edition of the Organic Law
of the Judicial Power of 1909, with the subsequent laws amending it, and
the decisions of the Supreme Court interpreting it.56 This work also treats
of attorneys and procuradores, and of the Colegio de Abogados. The
functions of the Ministerio Fiscal are also described in the above
Organic Law.
In 1932, Antonio L. Valverde y Maruri published a volume of biogra-
phies and portraits of well-known Cuban judges.57 A discussion of the
Supreme Court of Cuba in the light of constitutional law is Juan Guti6rrez
y Quir6s's study published in 1934.8 Eloy G. Merino Brito prepared
drafts for laws revising the judicial system of Cuba, which he published
in 1936."5 In the same year, Antonio Barreras y Martinez Malo compiled
a biographical dictionary of the officials in the Cuban judiciary.60 This
contains 333 biographies, and an extensive bibliography of the works written
by each man.
The Constitution of 1940 provides in Title XIV for the exercise of the
judicial power of the Republic. The text of the Constitution, together
with the text of Decree 127 of Jan. 27, 1909 (Ley orgdnica del poder
judicial), as adapted to the new Constitution, are contained in the com-
pilation Leyes Civiles de la Repiblica de Cuba, compiled by SAnchez Roca,

"Sierra y Jiminez, Juan: Manual del secretario judicial, juzgados municipales.
Habana, "Cultural," 1928. 231 p.
Manual del juez municipal. Habana, "Cultural," 1930. 417 p.
"Manual prdctico del policia judicial. Habana, Jes6s Montero, 1934. 141 p.
SLazcano y Maz6n, Andr6s: Ley orgdnica del poder judicial de la Repuiblica de
Cuba. Habana, "Cultural," 1931. 424 p.
"Valverde y Maruri, Antonio L., Jurisconsultos cubanas. Habana, "Cultural,"
1932. 254 p. (Colecci6n de libros cubanos vol. XXX).
Gutierrez y Quir6s, Juan, La reform constitutional y el tribunal supremo.
Habana, Jes6s Montero, 1934. 184 p. (Biblioteca juridica de autores cubanos y
extranjeros, vol. XIV).
a Merino Brito, Eloy G., Reorganizacidn del poder judicial. Habana, E. Fernan-
dez, 1936. 109 p.
"Barreras y Martinez Malo, Antonio, Diccionario biogrdfico del poder judicial.
Habana, 1936. 572 p.









LAW AND LEGAL LITERATURE OF CUBA


P6rez Lobo and Ruiz Sierra."6 The Constitution prescribes the composi-
tion of the Supreme Court; of the Tribunal de garantias constitucionales
y sociales; of the Tribunal superior electoral; of the Ministerio Fiscal; and
of the Consejo superior de defense social and the juvenile courts. Other
sections provide for the methods of contesting the constitutionality of laws,
and for the jurisdiction of the several courts and permanency of tenure of
the judges.
The most recent edition of the Organic Law of the Judicial Power of
Jan. 27, 1909, is that compiled by Gustavo Ramirez Olivella, published in
1939.62 This contains all the modifications introduced up to April, 1939,
inclusive. The citations to laws enacted subsequent to 1909 which amend
the various articles are given in the footnotes. Since the publication of
this compilation, the court system has, as above noted, been further modified
by the new Constitution of 1940. The Supreme Court (Tribunal Su-
premo) is divided into the following chambers or salas: Sala de Gobierno
or administration; Sala de lo Civil; Sala de lo Criminal; Sala de lo
Contencioso-administrativo. Attached to the Court is the office of the
Ministerio Fiscal. The Audiencia or Provincial Court of Havana also is
divided into similar chambers or salas. There are two salas which com-
bine civil and administrative cases, and five salas for criminal cases. There
are a number of courts of first instance (Juzgados). The municipal courts
are denominated "Primera Instancia," "Instrucci6n" and "Correccional."
A list of the courts mentioned above, with the names of the judges, is
given in the Judicial Directory of Havana published by Rail Davida Orta
in 1941.63
FORM BOOKS
An older handbook for use in the initiation of a suit is Juan Arango
Garcia's El sumario, first published in 1904.64 Ismael Segura y G. Menocal
of Guan6, (Pinar del Rio) published in 1927 65 a handbook for the use
of candidates for the position of procurador. The Law of July 19, 1909,
prescribed the terms on which parties may be represented in court by
bonded attorneys. The present work contains a summary of the subjects
in which procuradores or attorneys must be examined, including civil pro-

SSee note 90, page 19.
Ramirez Olivella, Gustavo, Ley orgdnica del poder judicial de 27 de enero de
1909. Con todas las modificaciones introducidas hasta abril de 1939 inclusive.
Habana, cia. ed. de Libros y Folletos, 1939. 125 p.
'D vida Orta, Rail, Directorio judicial de la Habana. Habana, Imp. Albino
Rodriguez, 1941.
"Arango Garcia, Juan. El sumario. Guanajay, Imp. "Generosa", 1904; 2' ed.
Habana, Imp. de Rambla, Bouza y cia., 1917. 119 p.
Segura y G. Menocal, Ismael, Manual del procurador y del mandatario judicial.
Habana, "Cultural", 1927. 950 p.









NOTARIES


cedure, contencioso-administrativo, the Ley orgdnica del poder judicial
and other subjects. Examinations are supervised by the Supreme Court
under a regulation of Aug. 7, 1909.
In 1924, Juan Miranda y Urquiza, a former, municipal judge of Santa
Clara, published a form-book.6 This contains forms for use in practice
in the municipal courts (Juzgados municipales). The forms refer both to
litigious suites and to voluntary jurisdiction. They relate not only to civil
but also to commercial cases.
A volume of forms for writs and pleadings used in proceedings of all
sorts both civil and penal, was published in 1927 by Fausto Garcia
Rivera.67
Another form-book for municipal courts, without explanatory matter,
was published in 1930 by Lorenzo Delgado Diaz.68 This edition of forms
was authorized by the President in Presidential Decree 705 of May 28,
1930, which gives it official standing. This same author, in 1929, pub-
lished a volume of forms for petitions, court orders and other pleadings
necessary in all types of actions.69 This manual was likewise approved by
Presidential Decree 2096 of Dec. 17, 1928.
In 1931, J. A. Hernmndez, a procurador, published a manual on pro-
cedure for the use of students who contemplate entering the judicial service
as State's attorneys.70 This covers both civil and criminal law and
procedure and the organization of the Judicial Power.

NOTARIES

AN ENGLISH translation of the notarial laws then in force in Cuba
was published by the Division of Customs and Insular Affairs of
the War Department in 1899.1' This was the Spanish law which was
extended to Cuba in 1873, with the decrees and orders modifying and
regulating it, up to 1898.72

"Miranda y Urquiza, Juan, Procedimiento civil prdctico en los juzgados mu-
nicipales. Habana, Imp. "La Prueba", 1924. 248 p.
"Garcia Rivera, Fausto, Escritos judiciales. 2" ed. Habana, "Cultural," 1927.
553 p.
"Delgado Diaz, Lorenzo, Formulario para los juzgados municipales. Habana,
Jes6s Montero, 1930. (Biblioteca Juridica de Autores Cubanos y Extranjeros,
Vol. I.)
"Delgado Diaz, Lorenzo, Instrucciones e instancias. Habana, Jesus Montero,
1929.
"Hernandez, J. A., Manual tedrico prdctico del procurador. Habana, Ed.
Alberto Soto, 1931.
Translation of the Notarial Laws in force in Cuba and Puerto Rico, Washing-
tion, Gov't Print. Office, 1899. 58 p.
Ley y reglamento del notariado para las provincias de Cuba y Puerto Rico.
Habana, Imp. del Gobierno, 1874.









LAW AND LEGAL LITERATURE OF CUBA


*In 1906 appeared the second edition of Jos6 Rail Sedano y Agramonte's
collection of the laws and regulations at that time in effect in Cuba.78
This contains the text of the Spanish law and regulations of 1873 and
other supplementary decrees.
In 1917 B. Celorio y Alfonso published a study of the functions of the
notary, the development of the office, its place in the law and necessary
reforms in the Cuban system.74 His volume has a bibliography.
A compilation of legislation concerning notaries was published with
annotations by Angel C. Betancourt y Miranda in 1918.75 This is an
edition uniform with this author's editions of the codes. In 1924 Andr6s
Segura y Cabrera published a critical outline of the theory and practice of
the office of notary.7" This is a compendium of all the situations in which
a notary may act, with citations to the pertinent legislation in each case
and forms for the necessary documents. There is a bibliography. Rail
L6pez Castillo published, in 1929, a monograph on the rules concerning
notaries in dealing with documents and contracts arising from marriage.77
In 1929 Manuel Martinez Escobar published a treatise on legal per-
sonality and the reforms introduced by the Notarial Code.78 The same
author has written a later book on the same subject published in 1940.79
In 1931, an elaborate compilation of laws and decrees on notaries was
published by Francisco Llaca y Argudin, President of the Sala de la Audi-
encia of Havana.80 This is an edition which contains footnotes with
explanatory matter and citations to case-law.
An edition of the Notarial Code of .1929 and its amending laws was
published in 1933 by Magdaleno Chils Navarrete.81 This edition carries

Sedano y Agramonte, Jos6 Rail: El notariado en Cuba. 2' ed. Habana,
Imp. Seoane y Alvarez, 1906. 270 p.
Celorio. y Alfonso, Benito: La reform notarial. Habana, Imp. de Rambla,
Bouza y cia., 1917. 172 p.
Betancourt y Miranda, Angel C.: Legislacidn notarial vigente en la Repdblica
de Cuba. Habana, Imp. de Rambla, Bouza y cia., 1918. 319 p.
"6 Segura y Cabrera, Andr6s: Programa para los ejercicios tedricos y prdcticos en
las oposiciones para la provision de notarios. Habana, "La Moderna Poesia",
1924. 699 p.
SL6pez Castillo, Ra6l: El matrimonio notarial. Habana, Imp. P. Fernandez y
cia., 1929. 71 p.
78Martinez Escobar, Manuel: La personalidad y su jurisprudencia, con las
reforms introducidas por el Cddigo Notarial y un Apendice sobre dicho cddigo.
Habana, Imp. de Rambla, Bouza y cia., 1929. 306 p.
Martinez Escobar, Manuel: La revolucidn de la personalidad. Habana, "Cul-
tural," 1940. 718 p.
Llaca y Argudin, Francisco: Legislacidn notarial de Cuba. 2" ed., Habana,
Imp. de Rambla, Bouza y cia., 1931. 410 p. l"ed., Imp. "Advisador Comercial,"
1917. 226 p.
"Chils Navarrete, Magdaleno: El Cddigo notarial y su jurisprudencia. Mari-
anao Imp. "Marianao, Alegre," 1933. 152 p.









CIVIL CODE


a section of citations from case-law, arranged alphabetically under subject-
headings.
The most recent compilation of notarial laws is that by Ramiro
Carbonell BarberAn published in 1939.82 This contains the Cddigo no-
tarial of Feb. 20, 1929, the Ley notarial of Dec. 17, 1937 and its Regula-
tions, and the portions of the codes of interest to notaries. There is an
alphabetical index of the subject-matter of the legislation included in the
work. There is a list of the names and addresses of the notaries of Cuba
arranged in order of seniority. There are also included the subjects in
which, by the law of April 11, 1903, candidates for notarial positions
are to be examined.
In 1938, H. P. Crawford, of the Bureau of Foreign and Domestic
Commerce, United States Department of Commerce, made a translation
into English of the law on notaries."8 An older discussion in English is
that by Guerra Everett.84
CIVIL CODE

HISTORY

T HE Cuban-Civil Code, in effect to-day, is that which was decreed
for Cuba, Puerto Rico and the Philippines by Spain on July 31, 1899.8'
On Jan. 1, 1899, the Military Governor of Cuba proclaimed the Code as
remaining in force, subject to modification from time to time, whenever
such change may be necessary for better government. In 1902, Order 148
declared that all and every one of the laws, decrees, regulations, orders
and other provisions promulgated by the Military Government were to re-
main in effect until they were expressly abrogated or modified. Transitory
provision No. 7 of the Constitution of 1901 declared that all laws, decrees,
regulations, orders and other provisions in effect at the time the Consti-
tution was promulgated would remain in effect until legally abrogated
or modified. The Constitutional Law of 1934, abrogating the former of
1901, maintained the life of existing legislation.
Thus was made the transition of legislation in Cuba from a Spanish
colony to the present day, through the period of the United States inter-
vention. In effect, this means that the mass of Spanish law, with the

"Carbonell Barberin, Ramiro: Legislacidn notarial. Habana, "Cultural," 1939.
381 p.
"Crawford, Henry Paine: Cuban Law of Notaries Public. Washington, D. C.,
1938 (Commerce Reports, no. 2, of January 8.)
"Everett, Guerra: Trading under the Laws of Cuba. Washington, D. C., 1927.
rev. ed. (Trade Information Bulletin, No. 343.)
"Walton, Clifford Stevens: The Civil Law in Spain and Spanish-America.
Washington, D. C., W.'H. Lowdermilk and Co., 1900.









LAW AND LEGAL LITERATURE OF CUBA


addition of a habeas corpus act and a bill of rights, was carried over into
the Republic, with few modifications to date.
The Civil Code which was put into force in Cuba, Puerto Rico and the
Philippines in 1889, was that adopted in Spain in 1888. This Civil Code
was projected in a law approved by the Queen Regent of Spain on May 11,
1888 and known as the Ley de Bases. There are 27 "bases" or general
principles specified in this Law. The first one declares that the future Code
must be founded on the draft of 1851. The second base declared that
rules on nationality, naturalization, and corporations must be according to
legal and constitutional precepts then in force. The third base provided
that the Code must establish the forms of marriage; the fourth, that laws
concerning domestic relations should be according to the living law. The
subjects of the remaining bases are: 5, investigation of paternity; 6, absence
and presumption of death; 7, guardianship of minors; 8, age of majority;
9, civil registries; 10, ownership of property; 11, possession; 12, usufructs
and trusts; 13, servitudes; 14, ownership of animals and abandoned prop-
erty; 15-18, wills, succession, widow's shares, order of inheritance; 19,
obligations; 20, contracts; 21, quasi-contracts; 22-23, property settlements
in marriage contracts; 24, gifts from parents to children; 25, dowries and
dower rights; 26, forms of contracts. Base 27, the concluding one, declares
that the final provision of the Code must abrogate all laws contrary to the
Code provisions; that provisions concerning acquired rights may not be
retroactive; and that such additional provisions may be added for ten years
after the Code is formulated as may be found warranted by experience in
enforcing the Code or by the experience of other countries.
This Code, as it stood in 1899, is divided into a Preliminary Title and
four Books, containing 1976 articles, 13 transitory provisions, and 3 addi-
tional provisions, as well as seven appendixes. The Preliminary Title
concerns laws, their effect and the general rules for their application. Book
one concerns Persons (nationality; domicile; marriage; affiliation; support
of kin; parental authority; absence; guardianship; the family council;
emancipation; and age of majority). Book two concerns Property and
Ownership (classification of property; ownership; community property;
some special properties; possession; usufruct; use and occupancy; easements;
registration of property). Book three concerns the Acquisition of Property
and Property Rights (retention, gifts, and succession). Book four deals
with obligations and contracts (the different kinds of obligations; contracts;
contracts concerning property in marriage settlements and community
property; purchase and sale; barter; leases; annuities; partnership; agency
loans; bailments; insurance and gambling; compromises and arbitration;
bonds; mortgages and pledges; quasi-contracts; concurrence and preference
of debts; prescription). Appendix one deals with the requisites and for-









CIVIL CODE


malities of marriage. Appendix two deals with the recording of religious
marriages in the Civil Registry. Appendix three declares who may oppose
a marriage and how. Appendix four concerns divorce or annulment of
civil marriages. Appendix five deals with guardianship; appendix six,
with alienation and encumbrance of the property of minors; appendix seven,
with method of procedure in the family council.
As has been mentioned above, the Civil Code which was adopted by
Spain in 1889, was based on the project for a Code which was prepared
in 1851. The idea of codifying the Spanish law had been actively dis-
cussed since 1811, when the Cortes accepted a resolution on the subject
proposed by the deputy Espiga y Cadea. A codification commission was
appointed in 1813, but the political situation in Spain brought these prepa-
rations to a halt till 1821, when a new commission was appointed. Again,
the political situation caused an abandonment of the attempt. In 1843 a
royal decree created a general commission composed of eminent jurists,
who fixed upon six fundamental principles for the codification of the law.
Then the commission was divided into sections, each section to have charge
of the preparation of a code. The draft of the Penal Code was finished
on December 23, 1845. Books one and two and part of Book three of the
Civil Code was finished on March 16, 1846. Then on July of the same
year, this commission was dissolved, and a new one was appointed to
finish the Civil Code, the Code of Civil Procedure, and the Code of
Criminal Procedure. The section of this commission which had charge
of the Civil Code finished its work on May 8, 1851, and submitted its
draft to the Government, with a report prepared by the President of the
commission, Florencio Garcia Gayena. This report contains an account
of the discussions which took place in the commission; of the historical and
legal precedents for each article that had some relation to previous law;
explanations of new articles with some remarks concerning the practical
application of them as foreseen by the commission. The sources of this
draft were three: the law of Castille; the opinions of jurists who had
studied the Castilian law; and some institutions and principles from for-
eign law. Of the last category, French law was the most important,
especially concerning the family council, holographical wills, guardians, etc.
This project was published by royal decree in the newspaper called
El Derecho Moderno, and the opinions of lawyers and judges were invited.
But nothing further was done about the matter. The idea of a unified
legislation, however, was not abandoned, although nothing was done, even
by the revolutionary government of 1868, except to declare in its constitu-
tion that "The same codes shall govern throughout the Nation." This
requirement was repeated in the Constitution of 1876.









LAW AND LEGAL LITERATURE OF CUBA


In 1880, another commission was formed, which was to use as a basis
for a new code the draft of 1851, with the addition of institutions and
principles drawn from the law of other parts of Spain than Castille. Com-
missions were also appointed to codify the law of each province, as an aid
to the national codification. August, 1881, a draft of the bases for the
Code was presented to the Senate for its approval. The Code itself was
then to be constructed on these already accepted bases, the Parliament
reserving the right to disapprove of the Code if it appeared to depart from
these general principles. This law of Bases, presented by the minister
Alonso Martinez, was not accepted. His successor, Francisco Silvela, then
presented another project which became the Law of Bases of May 11,
1888. The Code that was built on these principles entered into effect on
May 1, 1889.86
In studying the history not only of the Civil Code, but of other Cuban
legislation and the organization of the courts, there should also be con-
sulted the Civil Reports of the War Department of the United States con-
cerning Cuba for 1900-1901, and General Wood's Civil Report for Cuba
for 1902. The Report of the Secretary of Justice is included, which bears
considerably on the history of the transition from colonial to Republican
administration.
The First National Juridical Congress for the reform of the Civil Code
met at Havana, Dec. 27-30, 1916. The papers and addresses presented
in connection with this Congress were published in three volumes from 1918
to 1919.87 The presiding officer of the committee which edited the report
or Memoria of the Congress was Francisco Carrera y Jistiz. Each volume
contains an index of the papers presented. The leading attorneys of the
Republic presented papers and participated in the discussions, including
Antonio Sanchei de Bustamante y Sirv6n, Pablo Desvernine, Jos6 Antonio
del Cueto; Jos6 Agustin Martinez. The collection forms a valuable
commentary on the civil law of Cuba.
An important event of the year 1940 was the publication by Antonio
Sanchez de Bustamante y Sirv6n of the text of the draft for a new civil
code, with the modifications, adopted by the Codification Commission.88

For a careful and detailed study of the Spanish Code and its sources, see Henri
Sabadie's Les sources du droit civil espagnol, Carcassone, Editions Gabelle, Bibli-
otheque de 1'Institut de Droit Compare de Toulouse, 1926. See also: John T.
Vance's The Background of Hispanic-American Law; Legal Sources and Juridical
Literature of Spain Washington, D. C., The Catholic University of America,
1937. Also: New York: Central Book Co., 1943; T. W. Palmer, Guide to the Law
and Legal Literature of Spain. Washington, Gov't Printing Off., 1915.
Primer Congreso juridico national. Trabajos y acuerdos. Habana, Imp. "La
Universal", 1918-1919.
Bustamante y Sirv6n, Antonio Sanchez de. Proyecto de cddigo civil de Cuba.
Habana, Carasa y cia., 1940.









CIVIL CODE


In 1940 also a commission composed of Alberto Blanco, Antonio Diaz
Pair6, and Eduardo Le Riverend y Brusone prepared a draft of a new
civil code which was submitted to the Cuban Congress by President Federico
Laredo Bru on Sept. 9, 1940. The text of this draft, with its exposici6n
de motives dated Sept. 5, 1940, was published in 1941.89 This draft con-
sists of the same number of articles as the existing Code arranged in the
same order of topics, the text of the articles of the latter being amended or
replaced by new provisions. This affords a ready comparison and under-
standing of the proposed changes.
Alberto Blanco, one of the members of the Codification Commission
appointed by President Federico Laredo Bru delivered an address on Aug.
23, 1942 at Santa Clara regarding the reform of the civil code, September,
1942.90 In this address he describes the amendments suggested by the
Commission to be made to the civil code to adapt it to the new Constitution
of 1940. Among those suggested are provisions relating to capacity of
married women (comparing Articles 56 and 57 of the present Code with
Article 43 of the constitution) ; the problem of recognition of children born
out of wedlock (Article 44 of the constitution); the capacity to make wills
(Article 46 of the constitution); contracts of lease or share-crop contracts
of rural lands (Article 247 of the constitution).

CIVIL REGISTRY
The Spanish provisional Law of the Civil Registry of June 17, 1870 was
made applicable to Cuba by the Royal Decree of Jan. 8, 1884. It went
into effect in Cuba on Jan. 1, 1885 by virtue of a Royal Decree of Aug. 21,
1884.91 The Civil Code (Art. 332), which took effect Nov. 5, 1889 pro-
vides that the Law of Civil Registry should continue in force so far as not
modified by the Code.
In 1920 Francisco Llaca y Argudin published a compilation.92 This
contains the text of the law and regulations on the registry of civil status
and other legislation regarding the subject. There is also a set of forms
for use in carrying out the law, and decisions of the Supreme Court of
Cuba rendered between 1901 and 1917 construing the law. Two ap-

SProyecto de reform del cddigo civil. Habana, Tip. de Francisco Verdugo,
1940.
WBlanco, Alberto: "La reform del c6digo civil," Revista del Colegio de Abogados
aio V, vol. X, no. 27, p. 366.
Regulations for the execution of the law were published in the Gaceta Official
of Dec. 7, 1884.
"Llaca y Argudin, Francisco: Legislacidn sobre el registro del estado civil en
Cuba. 2' ed. Habana, Imp. de Rambla, Bouza y cia., 1920. 297 p.; 3" ed. Ha-
bana, Imp. de Rambla, Bouza y cia., 1930. 416 p. (Biblioteca del "Repertorio
Judicial")
535175-44-5









LAW AND LEGAL LITERATURE OF CUBA


pendixes also were published, the second of which, published in 1938,
brought the legislation up to that date. This contains the new Law of March
3, 1926, regarding the organization of the Civil Registry. A table of the laws
the texts of which are included in the appendixes is included in the volume.

TEXTS
In 1899 an English translation of the Civil Code was published by the
Division of Customs and Insular Affairs of the War Department.93 This
edition contains a translation of the Royal Decree of July 31, 1889, extend-
ing the Spanish Code to Cuba, Puerto Rico and the Philippines. It also
carries a good alphabetical index to the subject-matter.
In 1910, Angel C. Betancourt y Miranda, a judge on the Supreme Court
and formerly President of the Codes Commission of the Cuban House of
Representatives, published an edition of the Code.94 His foreword contains
a brief historical sketch of the Code and its extension to Cuba, the Spanish
decrees and exposicidn de motives, and the Ley de Bases. His method is
to present the text of the code articles, with footnotes interpreting them or
indicating the fact that they have been abrogated or modified and how. He
also gives, in smaller type in the text, the articles which have been abro-
gated, followed by the new laws which have taken their place.
Betancourt published a second revised edition of this Code in 1916, and
a third in 1924.95 The edition of 1924 carries an appendix containing laws
modifying provisions of the code on age of majority; the civil capacity of
the married woman; the promulgation and life of laws; divorce; and the
laws establishing and regulating agricultural contracts.
In 1926-27, Juan Arango y Garcia prepared a three-volume edition of
the code, with annotations based on the interpretations made by the Su-
preme Court of Cuba in decisions handed down during the first twenty
years of the code's life.96 Volume one contains articles 1-1034. Volume
two covers articles 1035-1076, the transitory provisions and appendixes
containing modifying laws. Volume three is an appendix to the whole,
containing decisions handed down between 1919-1923, the Naturalization
Law, the Workmen's Compensation Law, and the Expropriation Law, all
annotated with opinions of the Supreme Court. All three volumes have
alphabetical indexes.

Translation of the Civil Code in force in Cuba, Porto Rico and the Philip-
pines. Washington, Gov't. Print. Office. 1899.
Betancourt y Miranda, Angel C.: Cddigo civil. Habana, Imp. de Rambla,
Bouza y cia, 1910. 427 p.
Cddigo civil. Habana, Imp. de Rambla, Bouza y cia., 1916, 1924. 461 p.
"Arango y Garcia, Juan: El cddigo civil interpretado por el tribunal supremo de
Cuba 2 vols. Habana, Lib. "Cervantes" de R. Veloso y cia., 1926-27.










CIVIL CODE


The Civil Code also appears in the compilation of all the codes of Cuba
published in Barcelona and Havana in three editions between 1918 and
1922, with annotations by Pablo Barb6 y Huguet.97
A translation of the Spanish Civil Code of 1889 into English was made
by F. C. Fisher, former associate justice of the Supreme Court of the
Philippine Islands."9 This contains notes and commentaries, a digest of
leading Philippine cases under the appropriate articles of the code, and
an index.
In 1934-36, Eduardo Rafael NGiiez y Nfiiez published a ten-volume
edition of the Civil Code, with concordances to prevailing legislation and
case-law.9 In 1940, Appendix II to N6fiez y NfGiez's edition was pub-
lished.' The text of the Civil Code, with that of supplementary laws, is
contained in the compilation Leyes civiles de la Reptiblica de Cuba,
published in 1940.2 The supplementary or amendatory legislation includes
the following: Law of Aug. 20, 1901 suppressing the suit for redemption of
property (retracto legal); Law of July 18, 1917 on the civil capacity of the
married woman; Decree of Aug. 18, 1917 regulating the National Registry of
Marriage Contracts; Law of March 2, 1922 regarding crop lien contracts
and sugar-cane contracts; Decree-law 2701 of Nov. 16, 1933 regarding
interest-bearing loans; Decree-laws 206 of May 10, 1934 and 740 of Dec.
4, 1934 on divorce; Decree-law 887 of Feb. 19, 1935 on option contracts;
Decree-law 473 of Dec. 23, 1935 on loans with chattel mortgage guarantee;
Decree-law 770 of April 4, 1936 on invalidity of usurious loans; Law of
March 23, 1939 on rents, and regulations thereof issued on April 5, 1939.
This compilation contains an alphabetical index and digest of the subject-
matter of the civil code and amending laws.

Barb6 y Huguet, Pablo: Cddigos de Cuba. Barcelona, R. Sopena; Habana,
T. Benavent, 1922. 1487 p.; 4" ed. by M. Fernandez Supervielle. Habana, Lib.
"Benavent", 1925.
"Fisher, F. C.: The Civil Code of Spain with Philippine notes and references.
3rd ed. Manila, P. I. and Rochester, N. Y., The Lawyers' Cooperative Pub. co.,
1925. The first edition appeared in 1904 with notes by Charles Andrew Willard,
then an associate justice of the Supreme Court of the Philippines. Notes to the
Spanish Civil Code, showing changes elected by American legislation, with cita-
tion of cases from Philippines Supreme Court. Manila, Spanish ed.: Anotacidn del
cddigo civil espaiiol. Trans. by Frederick Charles Fisher. Manila, 1904.
"Nufiiez y Niiiez, Eduardo Rafael: Cddigo civil, concordado con la legislaci6n y
la jurisprudencia del mismo desde el 20 de abril de 1899 hasta el 24 diciembre
de 1933. Habana, Jes6s Montero, 1934-36 (Biblioteca juridica de autores cubanos y
extranjeros, vols. XVII-XIX, XXI-XXIII, XXVI-XXIX).
1 Cddigo Civil. Apindice II, ano 1936 y complementos. 1' ed.,
Habana, Jes6is Montero. (Biblioteca Juridica de autores cubanos y extranjeros, Vol.
LVII).
See note 90, p. 19, in the section on Collections of Laws.









LAW AND LEGAL LITERATURE OF CUBA


An edition of the Civil Code and supplementary legislation was pub-
lished in 1941 by Mariano SAnchez Roca.3 This contains the text of the
Constitution of 1940, and an appendix containing the regulations for
citizenship and immigration (decree 3022 of Oct. 15, 1940). There is an
alphabetical index of the Civil Code and supplementary legislation, and
another index of the provisions of the laws relating to civil status.

LITERATURE

An older discussion of the history of law that formed the basis of the
Civil Code is Mariano Aramburo y Machado's Bases para el cddigo civil
cubano.4 An elementary text in Civil Law was published in 1925 by Dorta
Duque.5 Emilio FernAndez Camus, professor of Roman Law and of the
Philosophy of Law in the University of Havana, published a commentary
on the Civil Code in 1924.6
The theory of legal personality in the law was discussed by Manuel
Martinez Escobar in 1929.7 This is a study of the legal concept as expressed
in the appointment of legal representatives, or guardians, and in the forma-
tion of civil and commercial associations.
In 1934-36, Eduardo Rafael N6fiez y Nfiiez published a treatise on the
Civil Code in ten volumes.8 Volume one contains the texts of the Spanish
royal decrees putting the new code into effect in Spain and Cuba; the Ley
de Bases of May 11, 1888; citations from case-law declaring in what cir-
cumstances the Code applies in specific instances; a collection of judicial
opinions on the general principles of the law; and case-law interpreting
articles 1-16. Volumes 2-10 cover the remaining articles of the Code.
The author's method is to present the text of each code article in bold-
faced type, followed first by articles from other laws and codes bearing on
the same subject, and then by case-law interpreting all the legislation on
the subject. Volume one has an alphabetical index to subject-matter.
The other volumes have indexes to code articles.

'Sanchez Roca, Mariano: Cddigo civil vigente en Cuba y su legislacidn comple-
mentaria. Habana, Ed. Lex, 1941.
SAramburo y Machado, Mariano: Bases para el cddigo civil cubano. Habana,
Imp. de Solano y cia., 1916.
SDorta Duque, Manuel: Resdimen de un curso elemental de derecho civil de
acuerdo con el program que desarolla en la cdtedra de la Academia de derecho.
Habana, 1925.
SFernindez Camus, Emilio: Cddigo civil espaiol explicado. Habana, Imp.
Fernmndez y cia., 1924.
'Martinez Escobar, Manuel: La personalidad y su jurisprudencia. Habana, Imp.
de Rambla, Bouza y cia, 1929. 306 p.
'See note 99, page 57.










CIVIL CODE


The question of nullities in the civil law was discussed by Alberto
Sinchez Ocejo in 1938.9 This is a comprehensive discussion of the subject,
including both a theoretical appraisal of the principles involved and their
practical interpretation by the courts. In 1940, Manuel Martinez Escobar
published a more voluminous discussion of the subject of personality with
a chapter on trustees by Jos6 F. Perera y Trujillo."o In speaking of the
basic principles which should underlie this concept of the law, the author
refers to himself as a member of that section of the National Codification
Commission having charge of the revision of the Code of Civil Procedure.
CONTRACTS
A treatise on sales in civil and commercial law was published by Andr6s
Segura Cabrera, an attorney and notary, in 1926.11 This discusses pro-
visions of both the Civil and Commercial Codes and includes a digest of
cases. Alberto Blanco, professor of Civil Law in the University of Havana,
published in 1930, his lectures on obligations and contracts.'2 Each chap-
ter of his work contains a bibliography. Book IV of the Civil Code (arts.
1088 et seq.) is the one that deals with obligations and contracts.
In 1930, Raiil L6pez Castillo published a study on the married woman's
power to contract, historically considered as well as under the newer
Cuban laws then in effect.13 He includes a section containing quotations
from case-law which interpret the provisions he has previously discussed.
The law discussed is Law 18 of July 1917.
Angel de la Portilla published in 1937 a monograph on share cropper
contracts, written in 1929. It is a study of Article 1579 of the Civil Code.
The author is Registrar of Property in Matanzas.14 The study embraces
the contract as applied to agriculture, stock-raising and industry.
Manuel Martinez Escobar published in 1938 a work on obligations and
contracts with citations to Spanish and Cuban case-law." The author is

Sanchez Ocejo, Alberto, La nulidad en el derecho privado. Habana, Jes6s
Montero, 1938. (Biblioteca Juridica de Autores Cubanos y Extranjeros, Vol. 44.)
238 p.
0 Martinez Escobar, Manuel, La revolucidn de la personalidad. Habana, "Cul-
tural," 1940. 718 p.
Segura Cabrera, Andres: La compra-venta civil y mercantil. Habana, Lib.
"Cervantes" de R. Veloso y cia., 1926. 252 p.
"Blanco, Alberto: Curso de obligaciones y contracts en el derecho civil espanol.
Habana, "Cultural" 1930. (Biblioteca de la Revista cubana de derecho.)
L6pez Castillo, Rail: Capacidad civil de la mujer casada. Habana, "Cultural,"
1930. 372 p.
Portilla, Angel de la: La aparceria o contrato de arrendamiento a partir ganan-
cias, studio del art. 1579 del Cddigo Civil. Ensayo juridico y economic. Habana,
Jes6s Montero, 1929. 2' ed. 1937. 92 p. (Monografias juridicas, vol VI).
Martinez Escobar, Manuel: Obligaciones y contratos. Habana, "Cultural,"
1938. 524 p.









LAW AND LEGAL LITERATURE OF CUBA


the presiding justice of the Civil Branch of the Supreme Court. In 1939
he published another work relating to contracts under the Civil Code."a
The two works together cover all types of contracts treated of in the
Civil Code.
In 1942, Giordano Bruno Montero y Garcia of Giiines published a mono-
graph on the law of landlord and tenant, leases and the suit of dispos-
session.1 The suit for dispossession of a tenant is based on the Code of
Civil Procedure. The Law of Rents (Ley de alquileres) is that published
in the Gaceta Oficial of March 25, 1939, relating to urban real estate.
The author gives in each chapter a digest of decisions of the courts
relating to this particular subject.

MARRIAGE
The legal capacity of the married woman is the subject of a dissertation
by Emilio Ferrer y Picalbia, published in 1881.18 In this there is a study
of the history of the legal position of married women in Roman and
ancient law and in Spanish legislation. The final part contains a com-
parative study of the law of Germany, Italy, France, England, and Russia
on the subject.
In 1930, Raiul L6pez Castillo published a treatise on the same subject-
a work awarded the prize by the Havana Bar Association in 1929.19 This
study is devoted particularly to the reforms introduced into Cuban legis-
lation by the Law of July 18, 1917. The text of the law, which amended
the Civil Code, is given, together with the author's comments. The
work contains a study of the history of legislation relating to married
women's property rights, and a comparative study of foreign legislation.
L6pez Castillo is also author of a handbook on marriages performed
before a notary."
In 1938, Emilio Menedez Men6ndez published a comprehensive treatise
on marriage.21 This is an historical consideration of the subject in
comparative as well as Cuban law.

"Martinez Escobar, Manuel: Contratos diversos. Habana, "Cultural," 1939.
SMontero y Garcia, Giordano Bruno: El contrato de arrendamiento, el juicio
de desahucio y la ley de alquileres. Habana, Jesfs Montero, 1942.
Ferrer y Picabia, Emilio, Capacidad juridica de la mujer casada. Habana,
Imp. Military de la Viuda de Soler, 1881. 158 p.
L6pez Castillo, Rail, Capacidad civil de la mujet casada. Habana, "Cultural,"
1930. 372 p.
"-- El matrimonio notarial. Habana, Imp. P. Fernandez y cia., 1929.
71p.
Men6ndez Menendez, Emilio, El matrimonio. Habana, Imp. Molina y cia., 1938.
2* ed. 1939. 385 p.









CIVIL CODE


By a law enacted Aug. 15, 1938, children born out of wedlock can be
legitimate by the subsequent marriage of their parents, whether or not
the parents were free to marry at the time of birth of such offspring.
The Constitution of 1940 provides: "The courts shall determine those
cases in which, for reasons of equity, a union between persons with legal
capacity to marry, shall, because of its stability and exceptional nature,
be given the same status as civil marriage." (Art. 43.)
Eduardo Le Riverend Brusone, professor of civil law in the University
of Havana, published in 1942 a treatise on concubinage.22 This contains
an interpretation of article 43 of the Constitution of 1940. In Part I,
Section IV, he gives the documentary history of this article of the consti-
tution. There is a valuable bibliography.

DIVORCE

Under the Civil Code, absolute divorce was not recognized, legal separa-
tion only being provided for. On July 29, 1918, Cuba adopted a law
providing for the dissolution of marriage by divorce.
Jos6 A. Gonzalez Lanuza published an address on divorce in 1903.23
Eliseo Giberga published one on the same subject in 1911;24 and Orestes
Ferrera, one in 1914; 25 and in 1917, Jos6 Manuel Cortina an address in
the House of Representatives.26 These were followed by speeches by Juan
Jose Maza y Artola,27 and Ricardo Dolz y Arango.28 Isidoro Corzo in
1919 edited the text of the Divorce Law of July 29, 1918, with com-
mentaries.29 It contains an alphabetical index of the subject-matter
of the law.
The law of 1918 was replaced by that of Feb. 6, 1930. An edition of
this last, with commentaries and interpretative case-law, was published in

"Le Riverend Brusone, Eduardo, Matrimonio andmalo-por equiparaci6n.
Habana, Cultural. 1942.
3 Gonzales Lanuza, Jos6 A.: El divorcio. Habana, 1903.
"Giberga, Eliseo: El problema del divorcio. Habana, "La Moderna Poesia",
1911.
2 Ferrara, Orestes: La defense de la ley de divorcio. 1914.
Cortina, Jos6 Manuel: El divorcio en Cuba. Habana, Imp. de A. Miranda,
1917.
Maza y Artola, Juan Jos6: Discurso del Senador a favor del proyecto de
ley de divorcio. Habana, Imp. de Rambla, Bouza y cia., 1917.
Dolz Arango, Ricardo: Discurso y ponencia sobre la ley del divorcio. Habana,
Imp. de Rambla, Bouza y cia., 1917.
Corzo, Isidoro: Comentarios a la ley del divorcio con disolucidn del vinculo
matrimonial de 29 de julio de 1918. Habana, Mestre y Martin cia., 1919.









LAW AND LEGAL LITERATURE OF CUBA


1931 by Isidoro Corzo.30 An appendix contains a brief statement of the
causes for divorce in each one of the United States. In the same year,
Francisco Llaca y Argudin compiled the laws and decrees bearing on
divorce annotated by explanatory footnotes and quotations from court
decisions. His edition was authorized by the Government.31 In 1932,
Ra6l L6pez Castillo published a study of the divorce law of Cuba, in which
he included the law of 1930; case-law covering the period 1918-1932; the
subject of foreigners who seek Cuban divorces; the Spanish law regarding
divorce; and forms for pleading in divorce cases.32 In 1932, Emilio Men6n-
dez Men6ndez, former professor of civil law in the Academia de Derecho of
Havana, published an essay on divorce which obtained honorable mention
in the annual contest of the Havana Bar Association.33 Chapter IX gives
an account of the history of divorce legislation in Cuba up to the Law of
Mar. 7, 1931. The second part of the work is an analytical study of the sub-
stantive part of the law 'respecting divorce. The third part of the work
deals with procedure in divorce cases.
The Law of Feb. 6, 1930, was abrogated and replaced by that of May 10,
1934, and its supplement of Dec. 4, 1934.31 Divorce is now governed by
the Civil Code (arts. 104-107), and the laws of May 10, 1934 (206), of
Dec. 4, 1934 (739), and of Dec. 17, 1937. The texts of the latter decree-
laws are contained in the compilation of civil laws of the Republic, made
by SAnchez Roca, Pirez Lobo and Ruiz-Sierra.35
In 1935, Antonio Diaz Pair6, professor of Civil Law in the Escuela
Privada de Derecho, published a study of divorce in Cuba."3 This is a
very complete treatise on the subject. The last three chapters deal with
the divorce of aliens in Cuba, the binding effect in Cuba of foreign
judgments of divorce, and binding effect of Cuban divorce decrees in
foreign countries.

Corzo, Isidoro: Comentarios a la ley del divorcio con disolucidn del vinculo
matrimonial de 6 de febrero de 1930 y jurisprudencia del Tribunal supremo sobre
la material. Habana, "Cultural," 1931. 237 p.
"Llaca y Argudin, Francisco: Legislacidn sobre el divorcio en Cuba. Habana,
Imp. de Rambla, Bouza y cia, 1931. 197 p. (Biblioteca de "Repertorio Judicial").
SL6pez Castillo, Rail: El Divorcio. Habana, Jes6s Montero, 1932. (Biblioteca
juridica de autores cubanos y extranjeros, vol. VII). 223 p.
Menindez Men6ndez, Emilio: El divorcio. Habana, "Cultural," 1932. 166 p.
"Decree-Law no. 206, May 10, 1934, Divorce Law. Lewis Loose-leaf Law
Service. Trans. into English- Gaceta Oficial extra, no. 45, May 11, 1934.
"See note 90, page 19.
Diaz Pair6, Antonio: El divorcio en Cuba. Habana, Tip. de F. Verdugo,
1935. (Biblioteca de la Revista Cubana de Derecho, Series A, T. III), 495 p.










CIVIL CODE


LEGITIMACY OF CHILDREN
The Cuban Civil Code was amended by the Law of Aug. 15, 1938,37
which provided for the registration and legitimation of children born out
of wedlock.
The Constitution of 1940 also made changes in the law affecting illegiti-
mate children. Jos6 Machado, Municipal Judge of Baracoa, has published
a study in which he has compared the provisions of the Civil Code with
those of the new draft code and the Constitution.3s

GUARDIANSHIP
In 1919, Juan Arango y Garcia published a monograph on the family
council in civil law."9 This is a commentary on Title X, Book I of the
Spanish Civil Code in force in Cuba. The work is accompanied by a set
of forms for use in pleading. The institution of the consejo de familiar
is defined by Ribera y Cafiizares 40 as "the assembly of relatives or of
other persons designated by the father (or the mother, as the case may be)
in his will; by the law, or by the judge, to take care, in conjunction with
the pro-tutor and the tutor (guardian) of the legal guardianship of the
persons and property, or only of the property, of those who, not being
under the father's authority (patria potestad), are incapable of taking
care of themselves."
CIVIL STATUS
A compilation of the law concerning the Registry of Civil Status was
made by Francisco Llaca y Argudin. His second edition appeared in
1920; and the third, enlarged and brought up to date, in 1930.4
A more recent compilation of laws relating to civil status is that made
by SAnchez Roca, Pirez Lobo, and Ruiz Sierra.42 This contains, among
others, the following laws relating to the public registry: Ley de Reg-
istro Civil of Jan. 1, 1885 and its Reglamento; Decree of the Provisional
Government 859 of 1908 relating to the registration of nationality in the
Civil Registry; the Decree-Law 788 of Dec. 28, 1934, modified by Decree-
Law 532 of Jan. 25, 1936 relating to the registration of aliens, also

Reportorio judicial of November, 1938.
Machado, Jos6, Los hijos ilegitimos. Habana, "Cultural," 1941. 222 p.
Arango y Garcia, Juan, Del consejo de famja. Habana, Imp. "El Siglo XX",
1919.
Ribera y Caiiizares, Prontuario del consejo de familiar.
Llaca y Argudin, Francisco: Legislaci6n sobre el registro del estado civil en
Cuba. Habana, Imp. de Rambla, Bouza y cia, 1920; 1930. p. 297 p., 416 p.
"See note 90, page 19.









LAW AND LEGAL LITERATURE OF CUBA


amended by Decree 2856 of Oct. 9, 1936; Decree of the Provisional
Government 276 of 1907 regarding registration of deaths.'3

SUCCESSION
A treatise on the rights of succession of the surviving spouse in the estate
of the deceased, was published in 1894 by Antonio L. Valverde y Maruri."4
The discussion is based on the provisions of the draft of a civil code of
1851 and the Ley de Bases of 1885 and the Spanish Civil Code of 1889
(arts. 834-839). There is a chapter (VIII) devoted to a comparative
study of foreign laws on the subject, including those of Argentina, Haiti,
Mexico, Uruguay and Vera Cruz. In 1917, Guti6rrez de C61is published
a work on the same subject.45
In 1931, F61ix Martinez Giralt, professor of Civil Law in the University
of Havana, translated from the Italian the work of Victor Polacco on suc-
cession with notes on the civil law of inheritance of Cuba and Spain.4'
This contains an index of the articles of the Civil Code of Cuba and Spain
cited in the translator's notes. Polacco was a professor of Civil Law in
the Universities of Padua and Rome. He died in 1926 without ever
having published his lectures, the translation being made from his notes.
A law of May 31, 1928, supplements the provisions of the Civil Code
with regard to descent and distribution of property. The Civil Code
provisions are Articles 657-1087.

CODE OF CIVIL PROCEDURE

HISTORY AND TEXTS

T HE Code of Civil Procedure which is still in force in Cuba, is the
Spanish Code of 1881, which was put into effect in Cuba, Puerto
Rico and the Philippines in 1885.4'

A recent decree provides regulations with respect to enemy aliens: Decree 3343
of Dec. 12, 1941. English translation by Lewis Loose-leaf Law Service, Habana.
Gaceta Oficial extra, no. 710, Dec. 12, 1941.
Valverde y Marurf, Antonio L.: Usufructo vidual. Derechos del cdnjuge viudo
d la sucesi6n del premuerto. Habana, Tip. "La Lucha," 1894. 147 p.
Guti6rrez de C6lis, Santiago R.: Derechos hereditarios del cdnjuge viudo.
Habana, Lib. "Cervantes," 1917. 96 p.
"Martinez Giralt, Felix: Las sucesiones por Victor Polacco, Tomo I. Habana,
Imp. "La Propagandista," 1931.
The history of the Code, as one element in the general codification of Spanish
legislation, may be found in Henri Sabadie's Les sources du droit civil espagnol. Car-
cassonne, Editions Gabelle 1936: Bibliotheque de l'Institute de droit compare de
Toulouse.










CODE OF CIVIL PROCEDURE


Until the extension in 1865, to Cuba, of the Law on Civil Procedure of
Oct. 5, 1855, Cuba, as a Spanish colony, was governed by the old Spanish
compilations, principally the procedural rules of the Siete Partidas and the
Novisima recopilacidn, with the partial reforms contained in Title 5 of
the Spanish Constitution of 1812, in the provisional regulations for the
administration of justice of Sept. 26, 1835, in that for the courts of first
instance of May 1, 1844 and various other provisions. Protests were made
against the abuses that had grown up in the courts, until at last the Marques
de Gerona, a learned judge and minister of justice, issued an "Instruction on
the civil procedure with respect to the ordinary royal jurisdiction". This
instruction opened the way for so many claims of malfeasance against the
court officials that it was revoked by a royal decree of Aug. 18, 1854. This
situation, however, hurried on the reforms, finally adopted in 1855.48
The application of the Code of 1855 to Cuba by a decree of Dec. 9,
1865, was accompanied by an instruction to clarify doubtful questions in
practice. The Code of 1855, after undergoing various changes, was com-
pletely reformed in 1881 by the Comision General de codificaci6n, ap-
pointed in 1878. These reforms were numerous, more than two hundred
articles of the new code differing from those of the old.49 A discussion
of the Code 1855 may be found in Vicente Hernandez de la Rua's
Comentarios a la ley de enjuiciamiento civil.50
The Revista de los Tribunales also published several annotated editions.51
This last edition carried the text as reformed by the Royal Decree of
Aug. 21, 1896. All these Spanish editions include the decree putting the
law in effect, and the "Exposicion de la Comisidn Codificadora de
Ultramar", which contains an account of the history and sources of this
piece of legislation. The editions prepared by the Revista de los Tribu-
nales carry alphabetical indexes.
In 1901, an English translation, by Frank L. Joannine was published by
the Division of Insular Affairs of the War Department.52 This carried
annotations consisting of translations of decisions handed down by the
Spanish Supreme Court, and explanations of Spanish legal terms. The
appendixes contain communications from the Military Government in

"See Martinez Alcubilla y Boronat, Marcelo: Diccionario de la administracidn
espaiiola, vol. VI, p. 692. Madrid, Augusto Figueroa.
"See Antequera, Jos6 Maria: Historia de la legislacidn espaniola. Ed. 4'.
Madrid, Imp. de San Francisco de Sales, 1895. p. 596.
Hernandez de la Rua, Vicente: Comentarios a la ley de enjuiciamiento. Vol. I.
Madrid, Imp. del Boletin de Jurisprudencia, 1856.
Ley de enjuiciamiento civil para las Islas de Cuba y Puerto Rico. 3' ed.
Madrid, Centro editorial de G6ngora, 1896. 715 p.
Translation of the Law of Civil Procedure for Cuba and Porto Rico, Wash-
ington, D. C., Gov't. Printing Office, 1901. 544 p.









LAW AND LEGAL LITERATURE OF CUBA


Cuba, giving the details of changes made in the procedural law and in
the system of courts since the withdrawal of Spanish sovereignty. There
is also an alphabetical index.
In 1905, Alberto Trujillo y Acosta published an annotated edition of
the Code of Civil Procedure with subsequent amending legislation.53 The
text of the code is followed by an appendix containing laws affecting the
judiciary, laws relating to special procedures, and tables of fees. The Code
has been amended by the Law of March 8, 1938.
An edition of the Law of Civil Procedure, as it stood in 1913, was
made by Angel C. Betancourt, in a format similar to his edition of the
Civil Code.54 Betancourt published a third, revised edition in 1922.
In 1937, Juan J. E. Casas6s edited a two-volume edition of the Law on
Civil Procedure with interpretations made in cases tried before French,
Belgian and Italian, as well as Cuban and Spanish Courts."
This Law or Code is in three Books and 2143 articles. Book one
covers parties, legal representatives, jurisdiction of the courts, appeals,
accumulation of actions, court orders and terms of court, decisions and
opinions, costs, etc. Book two is concerned with pleading, evidence,
witnesses, documents, arbitration, appeals against judges and magistrates,
execution of sentences, probate of wills and intestate succession, creditors'
agreements, bankruptcy proceedings, embargos (judicial attachments)
mortgage foreclosures, injunctions, expropriation and eminent domain,
appeals, reviews. The third Book is divided into two parts: Part one deals
with voluntary jurisdiction in cases involving the naming of guardians,
custody of minors and incompetents, wills, boundary disputes, in which the
parties seek adjudication by the court without litigating. The second
Part deals with similar voluntary court proceedings in the arbitration of
commercial affairs.
The latest information available on the question of a revision of the
procedural law appears to be the statement made in Chapter III of
Manuel Martinez Escobar's treatise on the concept of personality in the
law.56-5" He declares that one section of the National Codifying Commis-

Trujillo y Acosta, Alberto: Compilaci6n procesal civil. Habana, Imp. C.
Martinez y cia., 1905. (Biblioteca de Legislaci6n y Jurisprudencia de la Rep6blica
de Cuba.)
Betancourt y Miranda Angel C.: Nueva edicidn de la ley de enjuiciamiento
civil vigente en la Reptiblica de Cuba. Habana, Imp. de Rambla, Bouza y cia.,
1913. 630 p.
'Casasfs, Juan Jos6 Exp6sito: Ley de enjuiciamiento civil vigente en Cuba. 2
vols. Habana, "Cultural," 1937-38.
"" Martinez Escobar, Manuel: La revolucidn de la personalidad. Habana, "Cul-
tural," 1940. 718 p.










CODE OF CIVIL PROCEDURE


sion had been busy at work on a draft for a Code of Civil Procedure. This
section was presided over by Carlos Revilla y Ferrari, formerly President of
the Supreme Court, and its other members were Juan Carlos Angreu, a
Judge on the Supreme Court, Alberto del Junco, Antonio L. Valverde y
Maruri, and Manuel Martinez Escobar himself. This Commission was
dissolved, however, before it had done much work.
The text of the Code, together with the text of subsequent laws or
decrees suplementing or modifying it, is contained in the collection entitled,
Leyes Civiles de la Repuiblica de Cuba, published in 1940 by Sanchez
Roca, P6rez Lobo and Ruiz-Sierra."5
The same authors compiled and published in 1941 a collection contain-
ing the Law of Civil Procedure of 1881 and other laws.69 This includes
the Organic Law of the Judicial Power of Jan. 27, 1909, as modified by
the new Constitution of 1940, and other legislation including the law of
notaries and its regulation. There is an alphabetical index of subject
matter.
LITERATURE
One of the earliest works on Civil Procedure in Cuba is that of Jos6
Maria C6spedes y Orellano, a professor in the Universidad Real of Havana,
the first edition of which appeared in 1862 and the second in 1866.'0 The
work was based on the Spanish law then in force, which has since been
superseded. He divided his work into three parts, the first dealing with
contested civil cases, the second with ex parte proceedings (jurisdiccidn
voluntaria), and the third with special proceedings. The last included
ecclesiastical, military, administrative (contencioso-administrativa), and
commercial jurisdiction.
An old study of the procedural law in all its branches, as it existed in
the Spanish regime, is Ricardo Dolz y Arango's Program de derecho
procesal civil, penal, candnico y administrative." This is really a detailed
syllabus for the study of the subject. An earlier work by him had been
published in 1891.62

"See note 90, page 19.
"S nchez Roca, Mariano, Rafael Perez Lobo and Calexto Ruiz Sierra: Ley de
enjuiciamiento civil. Habana, Ed. "Lex", 1941. 661 p.
Cspedes y Orellano, Jos6 Maria, Elementos te6rico-prdcticos de procedimientos
civiles con aplicacidn a las islas de Cuba y Puerto Rico. 2 vols. 2' ed. Habana,
"El Iris", 1866.
Dolz y Arango, Ricardo, Programa de derecho procesal civil, penal, candnico y
administrative. Habana, Imp. "La Universal" de Ruiz y hno. 1896. 408 p.
"Dolz y Arango, Ricardo, Comentarios al titulo XV del Libro II de la Ley de
Enjuiciamiento Civil. Habana, Imp. "La Universal" de Ruiz y hno., 1891.










LAW AND LEGAL LITERATURE OF CUBA


An outline of proceedings in an appeal in cassation, with an historical
and critical discussion of the concept of cassation, is given in Alfredo G.
Fuente's El recurso de casaci6n."6 This is a commentary on Order 92 of
1899, issued by the Military Governor, specifying the circumstances under
which such an appeal may be had. A treatise on the action for enforce-
ment of obligations in probate proceedings in cases of intestate succession
was published in 1910 by Dolz Arango." This is a commentary on Titles
9 and 15 of Book two of the Law of Civil Procedure, with some compari-
son of the similar provisions of the preceding Spanish procedural laws of
1886 and 1865.
In 1923, Guillermo Portela published a treatise on procedural law."6
This is a textbook for law students, comprising notes of the lectures de-
livered by Dolz y Arango, who has written the preface. F. Caraballo
Sotolongo, published in 1923 a monograph on the procedural aspect of
"deposits in court" (or in escrow)."6 The work includes a study in
comparative law (Chap. III). In Chapter IV the author discusses two
decisions of the Supreme Court regarding consignaciones rendered in
1919 and 1920.
A handbook on practice in civil cases before the municipal courts was
published in 1924 by Juan Miranda i Urquiza, a former judge in the
Municipal Court of Santa Clara.67 The law for each step necessary in
carrying out a case, with forms of the necessary documents, appears under
subject-headings.
A study of actions in general was published by Andr6s Segura y Cabrera
in 1925.68 This is an outline of the law bearing on the subject, as it
appears in the Codes and in supplementary decrees, with a section on case-
law interpreting these provisions. A treatise on the action of dispossession
or ejectment was published in 1927 by him." He includes an historical
account of the action and the text of the pertinent articles of the Ley de
Enjuiciamiento and of Order 92 of 1899. After each law quoted, he

Fuentes, Alfredo G., El recurso de casacidn. Habana, C. Martinez y cia., 1907.
Dolz y Arango, Ricardo, Los abintestatos y el juicio ejecutivo comentarios a los
titulos ix y xv del libro II de la ley de enjuiciamiento civil. Habana, Imp. de
Rambla, Bouza y cia., 1910. 406 p.
"Portela, Guillermo, Tratado de derecho procesal, con arreglo al program del
Doctor Ricardo Dolz y Arango. 2 vols. Habana, "La Moderna Poesia," 1923.
Caraballo Sotolongo, F., Naturaleza procesal de la consignacidn. Habana, Ed.
"Hermes," 1923.
7 Miranda i Urquiza, Juan, Procedimiento civil prdctico en los juzgados mu-
nicipales. Habana, Imp. "La Prueba", 1924. 248 p.
SSegura y Cabrera, Andr6s, Acciones y recursos legales. Habana, Lib. "Cer-
vantes" de R. Veloso y cia., 1925. 285 p.
Segura y Cabrera, Andres, El juicio de desahucio. Habana, "Cultural," 1927.
235 p.











CODE OF CIVIL PROCEDURE


gives a section of commentaries and explanations. In 1929, Manuel
Martinez Escobar published a volume of case-law concerning this action.7"
His method is to give the substance of the judicial decisions he cites, or, if
case-law is not available, to give a synthesis of the theories on the point
in question.
An annotated handbook for use in actions to fix boundaries was pub-
lished anonymously in 1931.71 This contains forms for the necessary
documents, a brief sketch of the history of common lands, and the texts of
pertinent laws.
In 1933, Martinez Escobar published a treatise on the action by which
a third party may claim property already involved in another suit.72
This detailed study of the subject is illustrated with citations to cases
decided in the Spanish and Cuban courts. In 1936, the same author
published a similar treatise on the third party suit for preferential treat-
ment as creditor in cases involving mortgages, negotiable instruments,
wages, etc.73
A volume on appeals in amparo was published in 1932 by Rail L6pez
Castillo.74 He includes the text of the report made to the Military Gover-
nor, concerning a hypothetical (or disguised) case of dispossession without
compensation, which served to point out the necessity for some clearly-
defined legal remedy; and of Order 362 of 1900, providing for the pro-
tective appeal of amparo. Then he gives a concise explanation of each
point of law involved, frequently supported by citations to court decisions.
Decree-Law 102-bis, published in Gaceta Oficial of Jan. 8, 1934, modi-
fied Article 1506 of the Code of Civil Procedure by giving to the State
the right (tanteo) of acquiring, under certain conditions, property the
adjudication of which has been effected at public auction (en tercera
subasta). This right is further amplified by Article 89 of the Constitution
of 1940.
A brief outline of the procedural law was published in 1934 by Rail
Vila.75 A concise study of the juicio verbal was made in 1934 by

0 Martinez Escobar, Manuel, El desahucio y su jurisprudencia. Habana, Imp.
de Rambla, Bouza y cia., 1929. 354 p.
Compilacidn de las disposiciones vigentes sobre el juicio de deslinde. Habana,
Imp. de Rambla, Bouza y cia., 1931.
"Martinez Escobar, Manuel, Las tercertas de dominio. Habana, Tip. Molina
y cia., 1933. 406 p.
Martinez Escobar, Manuel, Las tercerfas de mejor derecho. Habana, Jes6s
Montero, 1936. (Biblioteca Juridica de Autores Cubanos y Extranjeros, vol. 27.)
405 p.
"L6pez Castillo,. Radl, El recurso de amparo. Habana, Jes6s Montero, 1932.
157 p. (Biblioteca Juridica de Autores Cubanos y Extranjeros.)
"Vila, Rail, Sintesis de derecho procesal. Habana, "Cultural," 1934. 109 p.









LAW AND LEGAL LITERATURE OF CUBA


Esteban Tomas Diaz, and F6lix Martinez Giralt.76 This is an annotated
outline of the proceedings, with an appendix of citations from case-law
under subject-headings alphabetically arranged.
In 1936, Manuel Martinez Escobar, then President of the Civil Branch
of the Supreme Court, published a work on appeals in civil cases." Each
chapter of this work contains references to cases construing the law, and
forms for use in pleading.
A modern consideration of Order 92 of 1899 is Alberto Sanchez Ocejo's
study, published in 1936.78 This contains the texts of all Spanish laws on
the subject preceding the extension to Cuba of the Law of Civil Procedure,
and of Order 92 of 1899, with subsequent modifications. There is also a
section containing excerpts from case-law, explanatory of points of law
frequently raised.
An elaborate study -of juicios verbales was published in 1937 by
Martinez Escobar."7 This is a consideration, not only of practice and
pleading, but of the actions in which such trials are possible.
In 1937-38, Eduardo Rafael Nfiiez y NGfiez published a six-volume
treatise on the Law of Civil Procedure as it stood at the end of 1936.80
Volume one includes the Royal Decree 1285 of Sept. 25, 1885, extending
the law to Cuba; the Order 148 of May 13, 1902, of the Military Governor,
preserving the life of the Spanish laws in Cuba; the article of the Constitu-
tion of 1901, doing likewise; the article of the Constitution of 1934 abrogat-
ing the Constitution of 1901, but maintaining in force the laws then in
effect; the article of the Constitutional Law of 1935, doing likewise; the
draft for the reform of the Constitutional Law of Dec. 16, 1936, doing like-
wise; the "exposici6n" of the Codification Commission of 1885; a list of
laws and treaties over which the Law of Procedure has or has not effect.
The editor's method is to present the text of each code article, followed by
citations from case-law. He also includes quotations from other laws and
codes that may have an effect, placing these between the code article and
the interpretative case-law. Each volume carries an index to code articles.

Diaz y Diaz, Est6ban Tomas and Felix Martinez Giralt, Los juicios verbales.
Habana, Jes6s Montero, 1934. 214 p. (Biblioteca Juridica de Autores Cubanos y
Extranjeros, vol. 16.)
"Martinez Escobar, Manuel, La casacidn en lo civil, con toda la jurisprudencia
relacionada con la misma y models escogidos de recursos. Habana, "Cultural,"
1936. 490 p.
1 Sanchez Ocejo, Alberto, El recurso de casacidn (en lo civil). Habana, Jesis
Montero, 1936. 292 p. (Biblioteca Juridica de Autores Cubanos y Extranjeros,
vol. 30.)
Martinez Escobar, Manuel. Los juicios verbales. Habana, "Cultural," 1937.
550 p.
SNfiiez y NuGiez, Eduardo Rafael, Ley de enjuiciamiento civil. 6 vols. Habana,
Jes6s Montero, 1936. (Biblioteca Juridica de Autores Cubanos y Extranjeros.)










CODE OF CIVIL PROCEDURE


In 1938, Alberto SAnchez Ocejo, President of the Bar Association of
Giiines, published a monograph on nullity in private law.81 This discussed
procedure in actions to declare the nullity of certain acts and contracts.
The second part of the work contains an alphabetical index and digest of
decisions of the Cuban Supreme Court on the subject.
Eduardo Rafael Nufiez y N6nez published, in 1938 and 1939, three
volumes dealing with special civil proceedings as an appendix to his work
above-mentioned on the Ley de enjuiciamiento civil.82-s3 The first volume
covers summary procedure in mortgage foreclosures, moratoria, and in cases
under the Law of Sept. 2, 1937 (Coordinacion azucarera y protecci6n al
pequenio colono). The second volume covers procedure under Article 66 of
the Mortgage Law (Ley hipotecaria) and its Regulations; appeals in am-
paro; expropriation of property; appeal on the ground of unconstitutionality,
under the Law of March 31, 1913; insolvency under the Law of June 24,
1911, etc. The third volume covers procedure under the Law of March 2,
1922, relating to sugar-cane contracts; Article 297 of the Organic Law of
the Judicial Power relating to civil responsibility of officials of the
Ministerio Fiscal, and other special procedures.
Manuel Martinez Escobar published in 1940 a treatise in which he com-
piled decisions of the Supreme Court relating to powers of attorney and
the authority to represent corporations in suits in court.84 This work is
the outcome of studies made by the members of the National Codification
Commission in the preparation of a draft of a new code of civil procedure.
In 1939-1940, Alberto Junco y Andr6 published a two-volume work
on the procedural law.85 This work contains a preface rendering homage
to Ricardo Dolz y Arango, who died in 1937 and who held the chair of
Civil Procedure in the University of Havana for nearly half a century.
There is an excellent bibliography of works on civil procedural law. It
also quotes extensively from decisions of the Supreme Court reported in
the Reportorio Judicial and La Jurisprudencia al Dia.
A syllabus of the Law of Civil Procedure as taught in the law schools,
was published in 1941, by Jos6 Argote y Vald6s, former professor of that

Sanchez Ocejo, Alberto, La nulidad en el derecho privado. Habana, Jes6s
Montero, 1938. 238 p. (Biblioteca juridica de autores cubanos y extranjeros,
vol. xliv.)
8NfGiez y Nfiiez, Eduardo Rafael, Procedimientos civiles especiales. 3 vols.
Habana, Jes6s Montero, 1938-39.
Martinez Escobar, Manuel, La revolucidn de la personalidad. Habana, "Cul-
tural," 1940. 718 p.
Junco y Andre, Alberto, Derecho procesal civil. Habana, Imp. Ucar, Garcia
y cia., 1939. 2nd ed., 1942.
535175-44- 6









LAW AND LEGAL LITERATURE OF CUBA


subject in the Academy of Law of Havana.86 The author treats of the
historical background, the doctrine, the organization of the judicial system,
the parties to suits, the general procedural activities, evidence, and special
forms of actions. There is a brief bibliography.
Jos6 P. Mas y Obreg6n, a Municipal Judge in Havana, published in
1941 a work in which he discussed various articles of the Code of Civil
Procedure relating to attachments or embargos, and laws and decrees en-
acted subsequent to the adoption of the Code."7 The author includes a
digest of the cases construing the articles of the code cited (Arts. 1395-
1402, 1409-1415).
Property exempt from execution or attachment is specified in the Code
of Civil Procedure (Arts. 1446-7) and Decrees 279 of 1906, 2697 and
2701 of 1933 and 741 of 1934, and the Law of Dec. 17, 1937.
In 1942, Eduardo Ra:fael Nifiez y NGiiez published a monograph com-
menting on Articles 340-342 of the Code of Civil Procedure relating to
suits for further (or better) proof.88 The Law of March 8, 1938, affect-
ing the above provisions of the Code of Civil Procedure was published in
the Gaceta Oficial No. 138 of March 10, 1938.

COMMERCIAL CODE
HISTORY AND TEXTS
T HE Code of Commerce that took effect in Spain on Jan. 1, 1886,
was extended to Cuba by a Royal Decree of Jan. 28. 1886. The
regulations for the Commercial Registry, which accompanied the Code in
Spain, were extended to Cuba by a Royal Decree dated June 12, 1886.
The regulations for the organization and management of commercial ex-
changes were extended to Cuba by a decree of April 16, 1886, to take
effect May 1 of the same year.
A complete account of the history of the Spanish code and of the laws
governing procedure in commercial matters may be found in the introduc-
tion to the volume on Spain in the series of Commercial Laws of the
World.89 The introduction and commentaries were prepared by Lorenzo
Benito, vice-Rector and professor of Mercantile Law in the University
of Barcelona. The English translation was made by Wyndham A. Bewes.

"Argote y Vald6s, Jos6, Programa de derecho procesal civil.. Habana, Molina
y cia., 1941. 298 p.
8 Mas y Obreg6n, Jos6 P., De los embargos preventivos y del aseguramiento de
bleneslitigiosas. Habana, Imp. Rodriguez yhno., 1941. 100 p.
"Ninez y Ninez, Eduardo Rafael, Providencias para mejor proveer, en la ley
de enjuicimiento civil, y en la de 8 de Marzo de 1938, y en la jurisprudencia.
Habana, Jesfis Montero, 1942. 64 p.
Commercial Laws of the World. American ed. Boston, Boston Book Co., vol.
XXXII.










COMMERCIAL CODE


Benito has an interesting note on the difficulties attending the applica-
tion of the Code to Cuba, and declares that it was the inspire of the
reform of the commercial laws of Mexico, "in that her new Code of
Commerce of 15 September, 1889, which came into force on the following
January 1, to a great extent (it might almost be said, wholly) reproduces
our own." 90
Another historical account of the Spanish Commercial law is to be
found in the "Preliminary Study" in Ricardo M. Alemin y Martin's edition
of the code: 91
In referring to the Code in Cuba, Aleman declares:
"During the first American intervention, almost all the Spanish laws
in force in Cuba continued to govern us, by virtue of the proclamation
of the Military Governor, dated Jan. 1, 1899, which was confirmed by
Cuban court decisions and by transitory provision seven of the Constitution
of the Republic, which went into effect May 20, 1902.
"During the above-mentioned intervention and later in the Republic,
and in the second American intervention, many laws, military orders,
decrees, and other legal provisions, modifying the former legislation in
many of its institutions, were adopted. Some of these refer to mercantile
law, some abrogating and others completing provisions of the Code of
Commerce. The following merit special mention: Order 400 of 1900 on
the Commercial Registry; Decree 730 of 1910, granting an official charac-
ter to quotations on the privately controlled Stock Exchange; Order 79
of 1900 reestablishing commercial brokers; Order 166 of 1901, on brokers,
and the establishment of brokers' associations; Order 503 of 1905, on
sugar quotations; Decree 1123 of 1909, creating a Registry of corporations
in the Secretariat of Agriculture, Commerce and Labor; Circular 276 of
1904, on the registration of vessels; Law of July 20, 1910 on the Territorial
Bank of Cuba; Law of June 24, 1911, on suspension of payments; decrees
concerning money; and the housing laws of January, 1921; and others." 92-93
In 1899, the Division of Customs and Insular Affairs of the War De-
partment published a translation of the Code of Commerce, together with
the royal decrees.94-95 This contained some footnotes explaining Spanish
usages or citing Spanish case-law.
The Code, as it stood at this time, consisted of four books and 955
articles. Book one concerns merchants and commerce in general, com-

Idem. pp. 24-25.
Alemin y Martin, Ricardo M.: Cddigo de Comercio. 2 vols. 2" ed., Habana,
Lib. "Cervantes" de R. Velosa 1921.
"' Id. pp. lxxi-lxxii.
"'o Translation of the Code of Commerce in force in Cuba, Porto Rico and the
Philippines, amended by the Law of June 10, 1897 including the commercial reg-
istry regulations, exchange regulations, and other provisions of a similar character,
with annotations and appendices. Washington, D. C. Gov't. Print. Office, 1899.
291 p.









LAW AND LEGAL LITERATURE OF CUBA


mercial registries, bookkeeping, agents, etc. Book two deals with special
commercial contracts, commercial associations, joint accounts, commissions,
deposits, loans, purchase and sale, barter, overland transportation, insurance
contracts, commercial guarantees, bills of exchange, negotiable instru-
ments. Book three concerns maritime commerce. Book four deals with
suspension of payments, bankruptcies and prescription.
The regulation for the organization and government of the Commercial
Registry under the Code, was in five chapters: commercial registries and
officials thereof; manner of keeping the registries, entries in the commercial
registry; publicity of the commercial registry, and rights and liabilities of
registries. The regulations of the commercial exchanges were in seven
chapters: the position of exchanges in existence at the time the regulations
took effect; appointment and duties of licensed agents in exchanges;
meetings on exchanges; admission of securities, bonds, etc., in exchange
transactions; bonds of agents; schedules.
The Commercial Code regulates stores, shops and markets; banks,
produce and stock exchanges; warehouses; railroads, land transport and
shipping; brokers, factors and commission merchants, non-mutual in-
surance; mercantile loans, credits, negotiable and other papers, and bank-
ruptcy. But it leaves to the Civil Code the rules of agency, suretyship,
mortgages, contracts for services, single sales and quasi-contracts. The
Commercial Code deals with corporations, known as "compaiiias
andnimas" or "sociedades anonimas." There are four types of associations
or societies: the "colectiva" or regular partnership, the "comanditaria"
or special partnership, the "sociedad an6nima" or stock company, and the
"sociedad limitada"-the last created by the law of Feb. 8, 1926. Part-
nerships and companies may also be created under the Civil Code.
The laws and provisions supplementing the Commercial Code, as of
1911, are given in an English translation by Frank L. Joannine in Com-
mercial Laws of the World Series."9 Among these are the fourth book of
the Civil Code on obligations and contracts, the Regulations for the or-
ganization and government of Commercial Exchanges (extended to Cuba
by Royal Decree of Apr. 16, 1886 and approved by Royal Order of May 4,
1887); Decree 1123 providing for the registration in the Department of
Agriculture, Commerce and Labor, of banks, corporations and trading
associations; provisions relating to registration of vessels (Circular of the
Treasury Dept. 276 of July 5, 1914), and provisions relating to the Terri-
torial Bank of Cuba (Law of July 20, 1910).
In 1909, Angel C. Betancourt published an edition of the code similar to
his editions of the other codes.91 This contains the royal decrees, the

SCommercial Laws of the World, vol. IX. American ed. Boston, Boston Book Co.
"Betancourt y Miranda, Angel C., Cddigo de comercio vigente en la Cuba.
Habana, Imp. de Rambla, Bouza y cia., 1909. 325 p. 2d ed., 1917.









COMMERCIAL CODE


orders of the Military Governor, and all the additions and modifications
made up to that time. The text of the Code is annotated with footnotes
citing other laws, case-law and learned opinion. The second edition con-
tains the new decrees on foreign money, exchange value of Cuban money,
etc., passed up to that time.
In 1917, also, Ricardo M. Alemin y Martin published an annotated
edition of the code. A second edition appeared in 1921 in two vol-
umes.98 A preliminary essay contains an historical sketch of the com-
mercial law, with special reference to Spain and Cuba. According to this
author, the Spanish code of 1885-6 was based on the German code of
1807, and the preceding Spanish code of 1829. He also gives some ac-
count of the history of the codification of the commercial law in Spain,
leading up to the code of 1885; the transference of the Spanish code to
Cuba; its maintenance through American intervention; and the additions
subsequently made in decrees and orders. His method is to present the
text of each article, followed by several paragraphs of explanatory matter,
with a rubric on the margin to guide the reader and to cite other code
articles, whether Cuban or foreign. Volume one covers the first and part
of the second book of the code, articles 1-441. Volume two covers the
remaining portion of the second, the third and fourth books, articles
442-955 and the Moratorium Law of 1921. Both volumes have indexes
to code articles.
An English translation of the code was published in mimeograph form
by the Lewis Loose-Leaf Law Service in 1932."9 A four-volume edition
of the code was published in 1938-39 by Eduardo Rafael NGiiez y Nfifiez.1
It contains case-law covering the period 1899-1938. The text of the
code, together with the text of additional amendatory laws enacted from
1887 to 1940, is contained in the collection Leyes civiles de la Republica de
Cuba, published in 1940 by Sanchez Roca, Perez Lobo and RGis-Sierra.2 An
annotated edition of the Spanish Commercial Code of 1885, with English
translation, is contained in the publication on Latin American Commercial
Law. Cuba. Mexico. Costa Rica. by Ernesto Martin, and revised by
Stuart H. Benton of the New York Bar.8
Laws relating to the legal rate of interest are the Civil Code articles
1100-1110; Decrees 2701 of Nov. 16, 1933, 473 of Dec. 23, 1935 and 770
of April 4, 1936.

Alemin y Martin, Ricardo M., Cddigo de comercio anotado con arreglo a las
explicaciones del Dr. JosJ A. del Cueto. 2d ed., 2 vols. Habana, R. Veloso, 1921.
"Code of commerce. Havana, H. L. Lewis, 1932.
Nuiez y Nfifiez, Eduardo Rafael, C6digo de comercio. 4 vols. Habana, "Cul-
tural," 1938-39.
2 See note 90, page 19.
'Martin, Ernesto, and Stuart H. Benton, Latin American Commercial Law.
New York City, Latin American Adviser, Inc., 1926.









LAW AND LEGAL LITERATURE OF CUBA


The latest annotated edition of the Commercial Code is that prepared
in 1941 by Mariano SAnchez Roca.4 This contains also the Regulations
of the Bourse and of the Commercial Registry; the Law of Loans Secured
by Cattle; the laws governing insurance and bonding companies; and the
Decree-Law and Regulations of the Central Registry of Companies.
There is an alphabetical index of subject-matter.

CORPORATIONS
The laws governing corporations in Cuba are: the Cddigo de comercio
of 1885 (Book II, Title I); the Ley de asociaciones of July 30, 1887; De-
cree 1641 of Oct. 26, 1920; Decree 2554 of Sept. 12, 1940, on government
inspection of corporations. The text of the provisions of the Commercial
Code (Arts. 15, 21, 169) relating to foreign corporations, and of Decree
1641 (Art. 8) are given in the monograph by Vicente Vita, published by
the American Section of the Inter-American High Commission.6
By a decision of the Supreme Court of Cuba of June 28, 1915,6 the
registration of foreign mercantile associations in the Republic is obliga-
tory when they wish to establish themselves or to create branches in
Cuba; but a company that, from the place of its domicile, enters into
contracts with residents of the Republic is not subject to these requirements,
and therefore it is not possible to allege against such a company the failure
to register.
Two English translations of Decree-Law of April 20, 1936 on special
registers of corporations and Presidential Decree 2554, of Sept. 12, 1940,
on regulations for inspection of corporations, have been published by the
Lewis Loose Leaf Law Service.7
A comparative study of commercial companies in Cuba and the United
States, by TomAs P6rez HernAndez, was published in 1938.8 This cites
a provision (Art. 15) of the new penal code (Cddigo de defense social)
which recognizes criminal responsibility on the part of juridical persons,
such as corporations.
The new constitution of Cuba of 1940 contains provisions relating to
aliens and foreign corporations (Arts. 19, 90, 272). Article 272 makes
foreign companies subject to the same conditions provided in the law for

*S nchez Roca, Mariano, Cddigo de comercio vigente en Cuba y su legislacidn
complementaria. Habana, Ed. "Lex", 1941.
"Vita, Vicente: Estudio comparado sobre las legislaciones latino-americanas que
reglamentan las sociedades andnimas. Washington, Gov't. Print. Office, 1929.
1915 Jurisprudencia al Dia (Civil) 269.
'Habana, H. L. Lewis, 1936 and 1940.
s Perez Hernandez, Tomns, Compaiias mercantile en Cuba y los Estados Unidos.
Habana, Cia. ed. de libros y folletos, 1938.









COMMERCIAL CODE


nationals. But Article 90 limits the acquisition and possession of lands
by aliens and directs that measures be taken to cause the lands to revert
to Cubans.
INSURANCE COMPANIES

Translations into English of several decrees bearing on insurance com-
panies have been published by the Lewis Loose Leaf Law Service.9

COOPERATIVE ASSOCIATIONS

The organization of cooperative associations in Cuba is governed by
the Ley de asociaciones included in the Spanish Royal Decree of June 13,
1883, transmitted by Royal Order of June 9, 1888 and promulgated in
Cuba on July 10, 1888. These societies have as yet had a small develop-
ment in Cuba.
A discussion of cooperative associations and of the necessity of legislation
to regulate them forms the subject of a work by Manuel P&rez Pic6, a
member of the bar of Havana, published in 1939.10 This is a comparative
study, the author describing the cooperatives in Spain and Mexico and
other countries besides Cuba. He also gives forms of articles of organiza-
tion or statutes for cooperatives.

LITERATURE
GENERAL

A treatise on the Commercial Code, based on lecture notes of Jos6
Antolin del Cueto y Pazos, was published by Ricardo R. Duval y Fleites in
1908.11 This begins with a discussion of the philosophical basis of the
commercial law, and an historical sketch of its evolution in Spain and
Cuba. In the same year, Guerra Everett published a monograph, Trading

'Decree-Law 476, Dec. 23, 1935, extending the time for preparing a new General
Insurance Law and modifying Decree-Law 467 of 1934, re deposits of insurance
companies.
Presidential Decree 2266, Oct. 6, 1938, requiring brokers to submit to the Depart-
ment of Commerce a sworn declaration of insurance and bonds written outside of
Cuba but covering property located in Cuba, and also requiring natural or juridic
persons in Cuba taking out such insurance to file a sworn return thereof. Presi-
dential Decree 2320, Oct. 24, 1938, regulations for Law of Dec. 17, 1937, authenti-
cation of signatures to insurance and bonding contracts.
Presidential Decree 120, Jan. 20, 1939.. Deposits and requirements as to non-
resident insurance and bonding companies.
o P&rez Pic6, Manuel, Las asociaciones cooperativas. Necesidad de una legisla-
ci6n que las regule en Cuba. Habana, "Cultural," 1939.
"Duval y Fleites, Ricardo R., Derecho mercantil. .Habana, "El Iris," 1908.
453 p.









LAW AND LEGAL LITERATURE OF CUBA


Under The Laws of Cuba.12 A revised edition was published in 1927. In
1918 Ricardo M. Aleman y Martin wrote a monograph on the "commer-
cial act".13
In 1937, Luis J. Botifoll published two volumes on commercial law.
One,14 was a lecture given in the Escuela Privada de Derecho, discussing
modern commercial law. The other 1 is a syllabus for the study of com-
mercial law. In the same year Ricardo R. Duval y Fleites published the
second edition of his treatise on commercial law.16 The author was a
Justice of the Supreme Court. This edition contains additional notes
which cover the commercial legislation enacted from 1907 to 1937. The
work is in three main divisions: the law of land commerce, the law of
maritime commerce, and the law of insolvency.
In 1939, Ram6n Infiesta, a professor of the Faculty of Social Sciences
of the University of Havana, wrote a monograph on the historical bases of
commercial law.17 This traces the history of the origin of the commercial
law down to the Consulado del Mar and the Leyes de las Indias. In 1938,
Eduardo Rafael NfGiez y Nfiiez began to publish his annotated edition of
the Commercial Code."1 This is the most elaborate up-to-date treatment
of the Code. Volumes I-IV, which appeared between 1938-1939, cover
articles 1-955, with voluminous commentaries, comparisons with the Civil
Code and other legislation, and interpretative case-law that has accumu-
lated since 1899. Publication continues.

CORPORATIONS
An important work is the treatise published in 1919 by Ricardo M.
Aleman y Martin, a professor in the University of Havana, on companies
and corporations."9 This is a study of Titles one and two of Book Two of

Everett, Guerra, Trading Under The Laws of Cuba. Washington, Gov't. Print.
Office, 1925. (No. 343 of the Trade Information Bulletin of the U. S. Depart-
ment of Commerce). Rev. ed., 1927.
Alemin y Martin, Ricardo M., Los actos de comercio en la doctrine, en el
derecho vigente y en las principles legislaciones extranjeros. Habana, 1918.
Botifoll, Luis J., Las nuevas orientaciones del derecho commercial. Habana,
Jesss Montero, 1937. 24 p. (Monografias juridicas, vol. 8.)
"Botifoll, Luis J., Cuestionario de derecho commercial. Habana, Ed. Luis Ruiz,
1937. 53 p.
"Duval y Fleites, Ricardo R., Derecho mercantil. El cddigo de comercio. Ha-
bana, "Cultural," 1937.
Infiesta, Ram6n, Fundamentos histdricos del derecho mercantil. 2" ed. Ha-
bana, Jes6s Montero, 1939.
"NfGiez y N6fiez, Eduardo Rafael, Codigo de comercio. Habana, "Cultural,"
1938. Publication continues.
Alemin y Martin, Ricardo M., Las sociedades mercantiles en el derecho vigente.
Habana, Lib. "Cervantes" de Ricardo Veloso, 1919.










COMMERCIAL CODE


the Code of Commerce, as modified by supplementary laws. The author
examines the law as it has been interpreted by the courts and in the light
of comparative law. Direct quotations from court opinions are included
at the back of the book. Among the foreign countries with whose laws
comparison is made are Argentina, Brazil, Mexico and Uruguay. Citations
are made to decisions of the Supreme Courts of Spain and Cuba.
Gordon Ireland published in the Pennsylvania Law Review a thesis
dealing with the corporation law of Cuba.20
Rafil L6pez Castillo published in 1929 a monograph on corporations and
their representatives under the Notarial Code of Feb. 20, 1929.21 This
contains the text of the law regarding powers of attorney, protocolization
of documents, etc., with digests of cases and forms. The same author in
the same year prepared a pamphlet in English on the correct execution
of deeds of corporations, etc.22
A work on limited liability companies was published, in 1938, by Ernesto
Dihigo, a commentary on the Law of April 17, 1929.23 It contains much
comparative law.

NEGOTIABLE INSTRUMENTS

An old work on checks and bank-notes is that published by Federico
Mora in 1885.24 This is a discussion of Spanish law as it stood before the
enactment of the Commercial Code of 1886, the draft for which, however,
is considered. Ricardo M. Alemin y Martin also published a study on bills
of exchange in 1918.25 There is some attention paid to comparative law,
especially in England and France. A much more modern study of nego-
tiable instruments is that published by Manuel Martinez Escobar in 1929.26
This contains discussions of the reforms provided for in the draft of the
Code of Commerce which was at that time officially under consideration;
and a chapter on bills of exchange in the draft of the new Code by Jose

Ireland, Gordon, "Observations Upon The Status of Corporations in Cuba Since
1898." 76 Pennsylvania Law Review, 43-74 (November, 1927.)
L6pez Castillo, Rail, De la personalidad de las sociedades andnimas. Habana,
Imp. de P. Fernindez y cia., 1929.
"L6pez Castillo, Ra6l, Legal Capacity and Representation of Stock Companies in
Cuba. Habana, Imp. P. Fernandez y cia.
"Dihigo, Ernesto, Sociedades de responsabilidad limitada. Habana, Imp. y Lib.
"La Propagandista", 1929.
Mora, Federico, Del cheque. Habana, Imp. del Gobierno y Capitania General
por S. M., 1885.
'" Alembn y Martin, Ricardo M., La letra de cambio. Estudio de derecho mer-
cantil. Habana, 1918.
Martinez Escobar, Manuel, Letras de cambio, libranzas, cheques, vales y pagards.
Habana, Imp. de Rambla, Bouza y cia., 1929.









LAW AND LEGAL LITERATURE OF CUBA


A. del Cueto y Pazos, president at that time of the commercial section of
the National Codification Commission.

BANKRUPTCY
The Commercial Code of Aug. 22, 1885, which was extended to Cuba,
contained articles relating to bankruptcy (Book IV, Title I). These
articles were amended by the Spanish law of June 10, 1897, which was
extended to Cuba by the Royal Decree of June 25, 1897. The Code was
changed by the laws of June 24, 1911 (published in the Gaceta Oficial of
June 29, 1911), which amended articles 870-873.
The Code of Civil Procedure also contains provisions relating to
bankruptcy.
SThe Law of June 24, 1911, on the suspension of payments, revising
articles 870-873 of the Commercial Code, was annotated and interpreted
by Angel C. Betancourt y Miranda, a judge of the Supreme Court in
1912.27 The author includes an historical discussion of the antecedents
of the law, the text of the law, and a detailed commentary on its pro-
visions, with long footnotes presenting discussions of the subject made by
members of the National Codification Commission with citations to com-
parative law and other interpretative material. In 1932, Manuel Martinez
Escobar, a judge of the Provincial Court of Havana, published a more
extensive but less detailed study of the suspension of payments and bank-
ruptcies.28 In Chapter III he discusses the Law of June 24, 1911.
Eduardo Rafael Niifiez discusses the subjects of insolvency and bank-
ruptcy in the fourth volume of his commentary on the Commercial Code
published in 1939, and in the appendix thereto.29

OTHER SUBJECTS
A study of insurance in comparative law was published, in 1905, by
Guillermo Dominguez y Roldin.80 He includes a bibliography. In 1926,
Andr6s Segura y Cabrera published a treatise on sales in the civil and
commercial codes.31 He begins his study with a discussion of the funda-
mental bases of contracts, of written contracts and the requirements for
the registration of property. He includes brief syntheses of opinions

"Betancourt y Miranda, Angel C., Suspensi6n de pagos. Habana, Imp. de
Rambla, Bouza y cia., 1912.
"Martinez Escobar, Manuel, Suspensiones de pagos y quiebras. Habana, Molina
y cia., 1932. 2a ed., 1939.
"Nfiiez y Nifiez, Eduardo Rafael, Cddigo de comercio. Tomo IV. Habana,
"Cultural," 1939.
"Dominguez y RoldAn, Guillermo, Estudio comparative del contrato de seguro.
Habana, Tip. "La Universal", 1905.
"Segura y Cabrera, Andr6s, La compra-venta civil y mercantil. Habana, Lib.
"Cervantes" de R. Veloso, 1926.










PENAL CODE


handed down by the Cuban Supreme Court in the period between 1920
and 1925. In 1940, Henry P. Crawford published an article on the
conditional sale in Cuba.2
A practical handbook for merchants was published in 1931 by Ren6
Acevedo Laborde.a It contains the texts of laws affecting trade and
explanations of the law in regard to various matters. Decree Law 163 of
Aug. 21, 1935, prohibits the secret carrying on of clandestine commerce
or industry. A monograph on the subject of clandestine trade and unfair
competition was written in 1937 by Jos6 P6rez Cubillas, professor of Fiscal
Law in the University of Havana."
Santiago Gutierrez de Celis published in 1925 a monograph on the
subject: Should the Cuban Government sign the Protocol of the League
of Nations regarding Arbitration in Commercial Contracts? 85
MARITIME LAW
Maritime law and shipping regulations are governed by the Commercial
Code (Arts. 573-869) and customs ordinances, including General Order
173 of 1901; the Law of Oct. 9, 1923; the Law of Ports (Royal Decree of
Oct. 31, 1890); and Decrees 3283 of Dec. 26, 1933, and 107 of Jan. 8, 1934.
In 1930, Evelio L6pez y Cazaleiz published a manual of customs practice
and procedure,83 containing the text of relevant laws and decrees, and the
commercial conventions between Cuba and Spain and Cuba and France.
Jos6 Machado, a Municipal Judge of Baracoa, compiled in 1941 the
laws relating to maritime laborers.37 This contains the text of the Law
of July 4, 1937, providing for a pension for laborers, and the Law of June
9, 1924, entitled Ley de inteligencia obrera.

PENAL CODE
HISTORY AND TEXTS
THE Penal Code in force in Cuba, up to 1938, was that extended to
the island by the Spanish Royal Decree of 1879. This was the
Spanish Code as reformed in 1870. It contained three books and 634

32 Crawford, Henry P., Conditional Sale in Cuba, Comparative Law Series, No. 4,
(June, 1940).
a Acevedo Laborde, Ren6, Problemas del comercio. Habana, Tip. Molina y cia.,
1931.
P6rez Cubillas, Jos6, El clandestinaje mercantil y la competencia desleal. Ha-
bana, Jes6s Montero, 1937.
Guit&rrez de Cells, Santiago, Should the Cuban Government sign the Protocol
of the League of Nations regarding Arbitration in Commercial Contracts? 1925.
"L6pez y Cazaleiz, Evelio: Tratado de prdcticas de aduanas. Habana, Ed.
"Hermes", 1930. 234 p.
"'Machado, Jos6: Ley de retire maritime y comisiones de inteligencia obrera.
Baracoa, Cuba, Hnos. Alayo, 1941. 318 p.









LAW AND LEGAL LITERATURE OF CUBA


articles. The first book concerned the nature of crimes and misdemeanors,
capacity to commit crimes, and punishment. Book two concerned crimes
and punishment; Book three, misdemeanors and punishment.
An official edition of this Code was published in 1879 in Spain.38 This
included the Royal Decree of May 23, 1879, extending the code to Cuba;
the report of the Commission which prepared the code for use in Cuba
and Puerto Rico; and the text of the Provisional Law for the application
of the provisions of the Penal Code. Another Spanish edition was pub-
lished in 1886.39 This edition carries citations to decisions handed down
by the Spanish Supreme Court. It also includes the Royal Decree of
May 23, 1879; the Ley provisional for the application of the code; the
text of the Law and Regulations for the abolition of slavery of Feb. 13,
1880; the Ley de imprenta (Law of the Press); and several other royal
decrees concerning the protection of children, the suppression of banditry,
etc., in Cuba. A second edition of the Code as annotated by Manuel
Ochotorena was published in Madrid in 1894.40 This contained cases
decided by the Supreme Court of Spain, and supplementary legislation.
An English translation of the Code appeared in Havana in 1898, with
explanatory notes and a glossary of Spanish legal terms.41 In the report
of the Commission for the preparation of the Code for Cuba, included in
the first Spanish official edition is a brief account of the history of the
penal law provided by Spain for the island. Unfortunately, not much is
said about the antecedents of the Code of 1870. The Division of Customs
and Insular Affairs of the War Department published an English trans-
lation of the Penal Code in 1900.42 This edition contains an English
version of the Royal Decree of May 23, 1879, and in the appendix, the
communications of the Military Governor maintaining in force the Spanish
laws. A glossary of English definitions of Spanish legal terms is included,
and a table of the duration of penal sentences, as well as an alphabetical
index.
In 1913, Angel C. Betancourt y Miranda published an edition of the
penal code that was uniform with his editions of the Civil Code and Code

C6digo penal para las provincias de Cuba y Puerto Rico y ley provisional de
enjuiciamiento criminal. Madrid, Imp. national, 1879. 179 p.
C6digo penal vigente en las islas de Cuba y Puerto Rico. Madrid, Tip. de
Pedro Nfiiez, 1886. 287 p. Also: Ley de enjuiciamiento criminal para las islas
de Cuba y Puerto Rico. Ed. official. Madrid, Imp. de R. Moreno y R. Rojas,
1888. 307 p.
Ochotorena, Manuel, Cddigo penal para las islas de Cuba y Puerto Rico. 2" ed.
Madrid, G6ngora, 1894. 624 p.
1 The Penal Code of the Islands of Cuba and Porto Rico. Habana, "La Propa-
ganda Literaria," 1898. 145 p.
Translation of the Penal Code in force in Cuba and Porto Rico. Washington,
D. C., Gov't. Print. Office, 1900. 175 p.










PENAL CODE


of Civil Procedure.4 His foreword gives a brief sketch of the history of
the Code. He indicates that an attempt was made to revise the Penal
Code in 1903, and another in 1908. His edition includes the decrees
putting the Code in force in Cuba, and maintaining its life through the
American intervention and the setting up of the Republic; the report of
the Commission which revised the Code for Cuba; and an appendix con-
taining the Provisional Law for the application of the Code, the Law of
the Press, the Law on Public Assemblies, the Law on Companies, the Law
on Explosives, Law of Pardons, the Postal Code, the penal provisions of
the Customs Regulations, and of the Electoral Law, and several orders of
the Military Governor on various subjects.
The movement for revision of the criminal law was well under way
through the 1920's and 30's. Section B of a Commission for the Codifica-
tion of the national laws (comisidn codificadora national) prepared the
draft of the first two Books of a Penal Code in 1922.44 This included a
statement by Mois6s A. Vieites, the author of the draft, as well as his
exposicidn de motives. In 1926, Fernando Ortiz Fernandez, then presi-
dent of the Section of Penal Legislation of this National Codification
Commission, published the draft of a first book or general part of a code
of criminal law.45 In 1927, a French version of this report was published
in Paris.48 A French edition of Vieites's draft was published in 1928,47
the translation being made by Calixto Whitmarsh, then first secretary of
the Cuban Legation in Prague.
These drafts for a penal code appear to have been more or less on the
traditional model. But a more modern concept of crime and its control
was gaining favor amongst Cuban jurists. In 1936, Diego Vicente Tejera
y Garcia, a judge on the Supreme Court of Cuba and a member of the
Institute Nacidnal de Provision Social y Reforma, published the draft of a
Code for the Suppression of Crime.48 According to his foreword, the
Ley constitutional of 1934 created the Council of State, which appointed

Betancourt y Miranda, Angel C., Cddigo penal. Habana, Imp. de Rambla,
Bouza y cia, 1913. 379 p.
Cddigo penal para la Repiblica de Cuba. Habana, Imp. "Advisador Comer-
cial", 1922. 32 p.
Ortiz Fernandez, Fernando, Proyecto de cddigo criminal cubano; Ponencia
official. Habana, "Cervantes" de R. Veloso, 1926. 168 p.
"'-- Projet de code criminal cubain. Paris, Lib. "des Juris-Classeurs," Edi-
tions Godde, 1927. 194 p.
SVieites, Moises A., Projet de code penal. Paris, Rousseau & cie., Lib. "Arthur
Rousseau," 1928. Spanish ed. Proyecto de codigo penal cubano. Habana, P.
Fernandez y cia., 1921. 122 p.
Tejera y Garcia, Diego Vicente, Proyecto de cddigo de represidn criminal.
Habana, Jesfis Montero, 1936. (Biblioteca Juridica de Autores Cubanos y Ex-
tranjeros, Vol. XXV.) 199 p.









LAW AND LEGAL LITERATURE OF CUBA


a Commission to draft a Cuban Penal Code, Tejera being one of the men
appointed.
The present "Code of Social Defense", as the new criminal code is
called, was approved by the Council of State on Feb. 10, 1936, to go into
effect May 15, 1936.49 There was another similar edition published at
the same time,50 which contained the text of the Ley de ejecucidn de
sanciones, approved Feb. 10, 1936. These editions contain the text of the
four Books of the Code, preceded by the reports on the drafts for these
books, made by the chairman of each section of the drafting commission.
The Code contains 594 articles and some supplementary and transitory
provisions. This Code was originally decreed to go into effect six months
after its publication in the Gaceta Oficial, April 11, 1936. The Law of
Oct. 7, 1936, postponed enforcement of the Code for two years, and it
finally took effect on Oct. 9, 1938, together with a Reglamento para la
ejecucidn, issued by the Secretaria de Justicia and the Secretaria de Gobi-
erno on Oct. 6, 1938, the Reglamento being later amended by Presidential
Decree 2229 of Oct. 24, 1938.
An edition of the Code, containing the Ley de ejecuciones de sanciones
and the Reglamento para su ejecuci6n, and the modifying decree, was
published in 1938.51 Book one, known as the "Parte General", contains
6 titles: Title one concerns the Code itself, the extent of its jurisdiction in
time, area and over persons. Title two concerns crimes in general, the
consummated crime, and the attempt to commit a crime. Title three
concerns the responsibility for crime, extenuating and aggravating circum-
stances. Title four concerns punishment (sanciones), the execution of
sentences, and parole. Title five concerns the extinction of criminal lia-
bility. This last title is of especial interest, because it deals with the "re-
habilitation" of the criminal. (Instituto de la rehabilitation, arts. 107-
109). Any criminal who has completed his sentence may seek his rehabili-
tation by petitioning the Court that sentenced him. That Court, on exam-
ination of the case, may send a petition to the Secretary of Justice, for a
presidential decree authorizing the rehabilitation, which decree amounts
to a cancellation of the criminal's record in the Registro Central de
Criminales. Title six of this Book concerns civil liability for crimes.
Book two concerns the various kinds of crimes and their essential ele-
ments: crimes aaginst the security of the State; against international
peace, the Law of Nations, and the liberty and security of the Seas;
against individual rights; against parliamentary inviolability; against the

Cddigo de defense social; relaciones y ponencias de los libros de cddigo. Ha-
bana, Comisi6n de Reformas Juridicas y Politicas del Consejo de Estado, 1936.
d Cddigo de defense social. Habana, Jes6s Montero, 1936 (Biblioteca Juridica de
Autores Cubanos y Extranjeros. Vol. 24.)
Ley de ejecuciones de sanciones, Habana, Cia. ed. de Libros y Folletos," 1938.










PENAL CODE


public order; against the administration of justice; against the public wel-
fare; of public officials, committed in the discharge of their duties; against
life, health, and bodily security; against the collective security; against good
morals and the family; against the good name of individuals; against
property rights.
Book three concerns violations of the public order and other actions
which do not amount to crimes, but are punishable (De las contraven-
clones). These appear to include misdemeanors and infractions of stat-
utory regulations, such as sanitary ordinances, etc. Book four concerns the
methods by which the security of the individual and of society is to be
maintained (De las medidas de seguridad). This section provides for the
detention of would-be criminals in hospitals, agricultural colonies, reform-
atories, etc., as a preventive measure.
The supplementary sections of the Code provide for its going into effect,
and for the amelioration of sentences of those convicted under the old
Code, since Article 3 of the new Code specifically declares the laws to be
of retroactive effect in favor of the accused. Number four of the supple-
mentary provisions contains a list of the laws and decrees which are
abrogated by this Code, including the Spanish Code in effect in Cuba
since 1879.
The reports of the drafting Commission on the various Books of the
Code contain discussions of the new terminology adopted (sanciones, con-
travenciones, etc.), and other new concepts. It is obvious from these
reports that this Code was greatly influenced by modern Italian thought
on criminal law. The Ley de ejecucidn de sanciones was approved at the
same time the Code was adopted. It created the Consejo Superior de
Defense Social, a technical advisory board to be attached to the Secre-
tariat of Government, which is to have charge of the application of the
precepts of the Code, apparently by advising the Courts on the appropriate
measures to be taken in each case. It is also to have charge of all criminals
or accused persons, and of persons released on parole; of prisons, reform-
atories, asylums, etc. The exposicidn de motives, which accompanied this
law to the Council of State, makes it plain that here also the modem
Italian and to a lesser extent, the French law, had considerable influence
in its drafting.
The following statement made by Jos6 Agustin Martinez in his report
on the preliminary draft of Book I of the new Code will serve to indicate
briefly the importance of this development in penal law.62
"In our judgment, the new code should be called 'The Code of Social
Defense;' we propose to substitute this name for that of 'Penal Code,'
which this body of laws now bears.
Martinez, Jose Agustin, Cddigo de defense social vigente en la Repiblica de
Cuba. Habana, Jesis Montero, 1939, p. 10.









o0 LAW AND LEGAL LITERATURE OF CUBA

"The reasons that have moved us to suggest this change in title have
already been pointed out by us in our written report to the Commission.
The new name corresponds to the new conception of Criminal Law that
we are now compelled to accept and is now crystallized in legislative form.
"No longer are we concerned with a code of 'penalties,' drawn up to
punish the delinquent by inflicting pain (malum passionis quod infligitur
ob malum actionss. The new code is inspired by a principle radically
different from the old idea of the defense of society against crime. It does
not attempt the punishment of the delinquent; it attempts the defense of
society by the reeducation or readaptation of the accused and the compen-
sation of the victims of the crime. The penalty-in-the-form-of-punishment
of the old law has been replaced in our draft by the penalty-in-the-form-of-
treatment, or by the 'sanction' as it may properly be called today. All old
concepts of penalty or punishment have been replaced by the new scientific
development of the criminal law. Because of these fundamental con-
siderations, the old title [Penal Code] has become inadequate.
Raggi y Ageo, another outstanding Cuban writer on modem social
theory in law, has this to say of the new code.53
"The Code of Social Defense constitutes the first formal and
complete attempt that has been made in our Republic to replace the penal
legislation left us by the mother country. We have replaced the old by new
legislation adapted to the political organization of our State, legislation
which at the same time embodies the new ideas and institutions of the
modem criminal law, unknown to the old Spanish Penal Code of 1870,
which has governed us until now.
"From this circumstance, therefore, is derived the character of the new
code, which may be qualified as a Code of Transition; serving as a bridge
between the abrogated Penal Code and the code of the future."
Martinez in his "prologo" to Raggi y Ageo's study, in discussing further
the significance of the new title for the code, states:
"If the action injures only the rights of individuals, without transcending
the established social order, the concept of it as a crime cannot be
considered complete. An injury to Society must exist, from which arises
the concept of the Act as a crime. The reaction of Society to such aggres-
sion must not be inspired by an archaic idea of vengeance. It must be
purely defensive of what Society values; restoring the damage and com-
pensating the victims and reeducating the delinquent; because the 'sanction'
that is applied, seen from this particular point of view, must permit the
attempt to re-absorb the delinquent into Society rather than punish him
or return evil for evil in an arbitrary and empirical measure." 54

Raggi y Ageo, Armando M., Derecho penal cubano. Habana, "Cultural," 1938,
Tomo I, p. 21.
"Id., p. 12.










PENAL CODE


In 1938, Jos6 M. Bustamante y Morej6n and Angel Segura Bustamante
published an edition of the Code, with its complementary penal legislation,
in two volumes.55 This edition, which was authorized by the Government,
includes the Code itself; its Ley de ejecucidn de sanciones and the Regu-
lations for the latter; the Report of the Commission created by the Code;
a table of concordances between the articles of the old Code and those of
the new: the Circular of the Secretariat of Justice, pointing out the juris-
diction of the Tribunales de Urgencia, as well as many other decrees and
regulations concerning the application of certain portions of the Code. In
1939, Jos6 Agustin Martinez published an edition of the new Code, with
its supplementary legislation as amended up to that date.56 Several edi-
tions of the Cddigo de defense social, the Ley de ejecucidn de sanciones y
medidas de seguridad privativas de libertad, and the Reglamento were
published in 1938,57 and in 1939.5
Under the Constitution of 1940 the death penalty cannot be imposed
except on persons guilty of treason, or of espionage in favor of the enemy
at a time of war with a foreign nation.

LITERATURE

One of the oldest works on the criminal law of Cuba is the compila-
tion of laws and interpretative case-law made by Ram6n Francisco Vald6s
in 1859.59
In 1906, Jos6 Agustin Martinez published a student's treatise on the
penal law.60 There are some allusions to the criminal law of the United
States. The same author prepared a more modem version in 1921.81
Eusebio Adolfo Hernmndez published a treatise on criminal law in 1917

"6Bustamante y Morej6n, Jos6 M., and Angel Segura Bustamante, Cddigo de
defense social y su legislacidn penal complementaria. 2 vols. Habana, "Cultural,"
1938.
"Martinez, Jos6 Agustin, Cddigo de defense social vigente en la Repdblica de
Cuba. Habana, Jes6s Montero, 1939 (Biblioteca Juridica de Autores Cubanos y
Extranjeros, Vol. 24.)
Cddigo de defense social, Habana, Jes6s Montero; Habana, "Cultural," 1938.
252 p. Also: Jes6s Montero, 1928. 286 p.
Cddigo de defense social. Habana, Ed. "Alfa," 1939.
SValdez, Ram6n Francisco: Diccionario de legislacidn y jurisprudencia criminal,
en que se comprenden todas las disposiciones que rigen en la isla de Cuba, segun
las leyes especiales orgdnicas de su administracidn de justicia y autos acordadas
vigentes. Habana, Imp. de D. Solar, 1859. 502 p.
"Martinez, Jos6 Agustin. Lecciones de derecho penal. Habana, Imp. "Cuba
y America," 1906. This is in two volumes bound as one.
Martinez, Jos6 Agustin: Programa de un curso de derecho penal. Habana,
Imp. "El Siglo XX," 1921. 212 p.
535175-44--7









LAW AND LEGAL LITERATURE OF CUBA


and 1918, which dealt with the theory and philosophy of the criminal law.62
In 1923, Armando Garcia Porras-Pita published a text for the use of
students in the National University and in the Academia de Derecho.S6
As the 1920's passed, the agitation for a revision of the criminal law
grew. In 1926, Luis Jim6nez de Asda published a critical essay on the
basic principles for a reform of the penal code.64 The same subject was
discussed by Francesco Cosentini, professor in the Unversities of Turin
and Brussels,65 in an address delivered in the Cuban House of Repre-
sentatives on May 2, 1929. In 1929, there was also published the official
report made to the Committee of Justice and Codes of the House of Rep-
resentatives by Mois6s A. Vieites.66 This appends a text of the draft for
a Code, annotated with explanatory matter inserted after each code article,
citing the example of foreign systems. In 1932, Francisco Fernandez Pla,
Director of the Instituto de Estudios Penales de Santiago de Cuba, syn-
thesised the report that he sent to the Committee on Jusice and Codes
of the House of Representatives on the reform of the criminal law.67
In 1925, there were published notes on lectures by Rafael Guis y InclAn
in the Academia de Derecho by one of his students, Angel Usategui y
Lezama.68 In 1926, there appeared a treatise on criminal law by Enrique
Lavedan (written in 1917; the author died before publication).69 The
prologue is by Jos6 R. HernAndez Figueroa, professor of Criminal Law in
the University of Havana, who wrote it before the adoption of the new
C6digo de defense social. This work discussed some of the reforms to be
made in the existing penal code.
A digest of decisions in criminal cases under the former code, rendered
between 1909 and 1912, was published in the form of a dictionary in 1932,
by Diego Vicente Tejera y Garcia, Fiscal of the Audiencia of Matanzas.70

SHernandez, Eusebio Adolfo. Tratado de derecho penal. Habana, Imp. "Avisa-
dor Comercial," 1918; Habana, Imp. "El Siglo XX," 1917.
Garcia Porras-Pita, Armando. Materia penal. Habana, Imp. de Rambla,
Bouza y cia., 1923. 220 p.
Jimenez de Asia, Luis: Normas directrices para una reform de la legislacidn
penal. Habana, Publicaci6n ordenada por el Directorio de la Federaci6n de estudi-
antes de la Universidad de Habana, 1926. 118 p.
Cosentini, Francesco: Las bases fundamentals de un nuevo cddigo penal para
la Repiblica de Cuba. Habana, "Vox Popularum," 1929. 63 p.
"Vieites, Mois6s A., Como debe ser la llamada ley penal. Habana, 1929.
382 p.
Fernandez Pla, Francisco. La reform penal en Cuba. Habana, Ed. Revista
Penal, 1932. 31 p.
Usategui y Lezama, Angel: Notas al c6digo penal. Habana, Carasa y cia., 1925.
SLavedan, Enrique: Programa de derecho penal. Habana, Imp. de Rambla,
Bouza y cia., 1926. 318 p.
"Tejera y Garcia, Diego Vicente: Prontuario de jurisprudencia criminal. Ha-
bana, Jes6s Montero, 1931-1932. 419 p. (Biblioteca juridica de autores cubanos
y extranjeros, Vol. VI).










PENAL CODE


This carries on the compilation of decisions rendered between 1899 and
1908 published in 1912 by Angel C. Betancourt y Miranda, a justice of the
Supreme Court.71
A monograph on the death penalty was written by Diego Vicente Tejera
y Garcia in 1927.72 The same subject was discussed in another monograph
by Joaquin G6mez de Molina ten years later.73
Studies of particular crimes include the critical appraisal of bribery "
and maladministration of public funds prepared by Diego Vicente Tejera
y Garcia.5 This contains not only a detailed consideration of the Cuban
law, but a comparison of the pertinent provisions of the codes of many
other countries. The same author published a similar discussion of mis-
feasance in office by judges and lawyers, especially the handing down of an
unjust sentence by a judge or administrative officer.7" He also published
a treatise on adultery.77 In 1926, Andr6s Segura y Cabrera published
a study on "public" crimes.78 This contains a list of Spanish legal terms
and phrases.
In 1928 there was published by the Bar Association of Havana a work
by Jos6 Agustin Martinez (awarded the first prize in the first annual com-
petition of that Association) on "political crime".79 This described the
history of legislation in regard to political crimes and the Cuban Law of
Amnesty of Dec. 28, 1927 and Article 14 of the former constitution. A
voluminous study of crimes committed against the rights of the individual
guaranteed by the Constitution was published by Tejera in 1930.80 As in
his other studies, the author includes a great deal of comparative law.

7 Betancourt, Angel C.: Jurisprudencia cubana. Prontuario, por orden alfabi-
tico, de la doctrine establecida por et tribunal supremo de la Repiblica de Cuba.
2 vols. Habana, Imp. Rambla, Bouza y cia., 1912-1929. (Tomo I, Parte Penal.)
"Tejera y Garcia, Diego Vicente: El hondo problema de la pena de muerte.
Habana, Imp. "El Siglo XX," 1927. 56 p.
G6mez de Molina, Joaquin: El problema de la pena de muerte. Habana, Jesiis
Montero, 1937. 56 p.
Tejera y Garcia, Diego Vicente: El cohecho. Matanzas, 1925. 225 p.
"--, -: La malversaci6n de caudales piblicas. Matanzas, Imp. "La
Pluma de Oro," 1924. 252 p.
Tejera y Garcia, Diego Vicente: La prevaricacidn. Habana, Imp. de Rambla,
Bouza y cia., 1926. 391 p.
T- -, -: El adulterio. Habana, Imp. de Rambla, Bouza y cia., 1928.
362 p.
"Segura y Cabrera, Andr6s: La policia judicial ante los delitos pfblicos. Ha-
bana, Imp. "La Universal," 1926. 311 p.
"' Martinez, Jos6 Agustin: La criminalidad political. Habana, Imp. Julio Arroyo,
1929. 264 p.
0 Tejera y Garcia, Diego Vicente. Delitos cometidos con ocasidn del ejericio de
los derechos individuals garantizados por la constituci6n. Habana, Imp. de Rambla,
Bouza y cia., 1930. 588 p.