over, at least in central and western Europe, the oath has much greater sanctity than with us, apparently, and perjury is severely punished. In our own system there is no doubt that the jury is a much overworked institution and does not necessarily contribute to justice, the presumptive aim of all systems of law. It is a well-known fact that when lawyers have a weak case they prefer a jury to a single judge sitting alone, for "one can always take a chance with a jury." There is every reason why ordinary civil and commercial cases can be better decided by judges without juries, and in England, in fact, the jury is now practically employed only in certain tort cases, such as malicious prosecution and slander and libel. Workmen's compensation acts have also diminished the necessity for the jury, for they have replaced those commonlaw rules of liability which were favorable to the employer and were only tempered by a jury favorable to the employee. If we could, therefore, gradually decrease the employment of the jury in civil cases, we should render less necessary many of the technical rules of evidence, we should have fewer new trials on errors due to the jury system, and we should greatly lessen the cost of litigation, besides gaining other advantages too obvious to require statement. One of the most serious defects of any legal system is uncertainty, and of that we have an abundance. The mass of conflicting and inconsistent decisions, on substantive and adjective law, has invited a mass of legislation. The enactment of rules of procedure is still in the hands of legislatures mstead of being, as in the British Empire generally, a part of the rule-making authority of the courts. The general ignorance of legislatve technique has resulted in a great deal of ill-considered and badly drafted legislation, which has necessitated more judicial construction, and so on in the vicious circle. The purpose of stare decisis was to make for certainty in the law. The verdict of experience is that we have probably more uncertainty in the law than any other civilized nation, and that Coke's admiration for the common-law system because derived from actually decided cases has but little justification to-day. As Mr. Wigmore has pointed out, we have lost all the advantages of stare decisis and have retained and intensified all of its disadvantages.

It may be asked how we shall escape from the disadvantages of our legal method. Feasible plans are not easy to frame, but if a suggestion may be ventured, it is this: Only by a change in our legal habits, combined with a rational system of codification, the codification of controlling principles and precedents. Whatever its weaknesses, codification offers probably the best solution for our difficulties. It has tremendous obstacles to overcome in our political system of sovereign States and the tendency to local particularism which discourages uniformity. A slight beginning, greatly appreciated, has, however, already been made in the acceptance of some of the drafts of the commissioners on uniform State laws. We need not, therefore, consider the task as hopeless. We might with considerable profit examine the method of codification adopted in British India, where by the use of what is known as "Macaulay's invention" of adding authoritative illustrations to the enacted text of a code they have achieved the advantage of a clear statement of the general principles of many branches of the law, while retaining the great advantage of case law in preserving the record of the remedies applied in the solution of actual cases.

But at the present moment, it is submitted, we are not ready for codification. Our law schools have not met their obligation of training a sufficient number of men who would be competent to take up such a monumental task. The law school should offer an opportunity to qualified students for training in the principles of

1 See

"Studies in English Civil Procedure: II. The Rule Making Authority," by Samuel Rosenbaum, in 63 Univ. of Penna. L. Rev. 151 (1915).

legal history, legal theory, comparative law, and legal science in general, the absence of which Prof. Redlich criticized in his recent report upon our system of legal education. One of the incidents of our insularity has been a neglect of foreign languages. Few of our lawyers can intelligently read a foreign law book; yet much of the world's best thinking in law has been made known in a foreign tongue. Greater emphasis upon modern languages will be an important factor in enabling our law students to acquire that broader and deeper substructure of legal knowledge which is essential. It has been the observation of the writer, after contact with lawyers of some 20 countries, that the education of our bar, taken as a whole and considering the average, is more superficial than is that of the bar of nearly every other civilized country. But very few of our lawyers think in terms of society or have any other than a merely business-certainly not a scientific-interest in the law. And yet if our law is to be improved it must be done by the bar itself on its own initiative, for the general public, notwithstanding the bitter experience of individuals, has proved indifferent to the social waste entailed by the present inefficiency of our system.

The aim, then, must be to institute in our leading law schools, in addition to the present courses for active practitioners, certain advanced courses in legal research to cover the history, the theory, and the philosophy of law and comparative law and thus stimulate constructive scholarship. A proposal to extend our law course to four years need not be regarded as inexpedient, especially in view of the fact that in the civil-law countries of western Europe and Latin America the law course covers from five to seven years. Moreover, experience has shown that, however admirable the case method is pedagogically, it takes the average student nearly a half year to feel at home and in tune with his work, especially as many of our law schools fail to give the student an introductory survey of the law as a consistent whole. If three years, however, is to be the limit of instruction, a portion of the work of the third year might be devoted to the subjects mentioned above in order (1) to give every practitioner some of the rudiments of legal science and (2) to enable the more serious students to acquire a taste for deeper learning in the law and a desire to continue further the pursuit of legal knowledge. If the law schools can exercise this progressive influence on our bar, it will inevitably reach the bench, the law, and the system itself.

The CHAIRMAN. The next paper upon the program is entitled "A study in Mexican law", and was prepared by Mr. Thomas W. Palmer, jr., of the Alabama bar. The volume in the Government series on foreign law which deals with the law of Spain was also prepared by him. Mr. Palmer, who pursued the plan of Dr. Borchard, has not only had several months of association with him but has had also the benefit of study at the University of Madrid. We shall now have the pleasure of listening to Mr. Palmer's paper.

A STUDY IN MEXICAN LAW.

By THOMAS W. PALMER, Jr.,
Member of the Bar of Alabama.

All civilized nations have by this time shaped their legal institutions, on the whole, into something which in each case is at least as suitable to their character and habits as anything of a different pattern that the wisdom of strangers could devise for them. We find often that institutions we think so natural do not always appear natural in other parts of the world and under other frames of society no less civilized than our own. (As the eminent jurist, Frederick Pollock,' has stated, legal institutions must be studied in the light of the national history if they are to be rightly understood.) For one who has been educated and trained under the Anglo-American system it is difficult to understand the laws and legal institutions of a system so different as that of Mexico, or its parent, Spain. The Mexican no doubt experiences a similar difficulty in studying Anglo-American law.

In the brief time allotted for this paper it will be impossible to do more than to point out a few peculiarities of Mexican law of interest for comparative study. It has occurred to me, however, that before taking up this somewhat technical subject a summary description of the manner pursued by the writer in approaching it may prove of interest to this audience, and possibly of help to some who are contemplating investigations of a similar nature. The experiences of a lawyer and not of a scientific investigator of foreign law are offered.

First, it is almost axiomatic that one can not expect to grasp the law of a foreign country if he does not understand his own, and is able to differentiate and compare the various theories and principles. All systems of law, like languages, bear many similarities, and are each for a single purpose to attain justice.

After the termination of a three years' course of study in Anglo-American law I undertook the study of Spanish law, knowing it to be the mother of the legal system of a large part of the world in which we have vital interests. With an understanding of Spanish law I was advised that Spanish-American systems were more accessible and better understood. Following a brief, and inadequate as I later discovered, study of the civil of Roman law, I took up that of Spain, beginning with the institutions of the earliest known inhabitants, the Celts and Iberians, tracing the development of the law through the infusion of the Roman, Germanic, and the Arabic elements of which this system is a composite. The history of the various old codes as the Lex romana visigothorum, Fuero juzgo, Furo viejo, the Partidas, the Nueva, and the Novísima recopilación was studied, as well as the evolution of the derecho foral and the customary law. I found that an early collection of statutes, pragmatics and orders enacted and issued by the House of Austria in 1680 relative to the colonies under the name of "Leyes de Indias" with later amendments and additions, is to-day of considerable importance in Mexico. Other practical results followed from this historical research.

A cursory study of the science of law and its closely related subject, the philosophy of law, was next taken up purely in an historical way in order that the growth and progress of the system could be better appreciated. The four epochs that is to say, the early or primitive period, the Rennaissance, the period of the influx of the French encyclopedists, and the present constitutional period or epoch, were differentiated and marked.

1 Continuity of the common law by Frederick Pollock. 11 Haw. Law Rev., 423-433.

At this time I had a fair idea of the system of codes so different from AngloAmerican institutions, the principles and theories of law, and even the contents of modern codes to a greater degree. With the latest revised code, on a particular branch of the law, a good textbook, and an up-to-date encyclopedia, the actual law in a given case could then be ascertained.

My great handicap was an inadequate knowledge of the language, as no language can ever be acquired without actually living in the country itself. On arriving in Spain I found that a vocal transmission of ideas was practically impossible beyond mere commonplace matters. Teachers or instructors versed in legal language were almost impossible to secure, and the only recourse was oneself. Hour after hour I sat listening to lectures in the Facultad de derecho of the Universidad Central, at the Ateneo, and at the Academia Real de Jurisprudencia y Legislación whenever possible, frequently not catching but a sentence here and there. Probably the best results were obtained in listening to the trial of lawsuits and criminal prosecutions. The long dry arguments in the various salas of the Tribunal Supremo and the actual trial of cases in the Audiencias, and even in the juzgados followed by a reading of the sections of the codes cited proved interesting and extremely instructive. The greatest setback was an occasional association with my own compatriots.

On entering upon the study of Mexican law, I, as others have done, first observed the scarcity of thorough treatises in the native language. Nearly all are handbooks on codes and the various statutes. There exist a few treatises and many translations of laws in English, the most useful and authentic beyond doubt being Mr. Wheless's Compendium,' published in 1910. This work will give one an accurate knowledge of most of the law "vigente." An older treatise, by Frederick Hall,' of San Francisco, is a standard work as well. In actual practice the courts and lawers of Mexico use no textbooks, relying mostly on the Spanish diccionario or encyclopedia of Joaquin Escriche for assistance in interpreting the codes and statutes and supplying principles to be applied in absence of legislative enactment. To Anglo-Americans it is interesting to note that the decisions of the appellate courts are not binding precedents and do not establish jurisprudence. In fact, they are never reported and published as in Spain, and hence are not resorted to for the persuasive influence they enjoy there. The Congreso in the civil code (arts. 20 and 21) and the commercial code (art. 1324) provides as follows for the determination of the law in a particular case:

When a judicial controversy can not be decided either by the text or by the natural sense or spirit of the statute, it shall be decided according to the general principles of law, taking into consideration all the circumstances of the case. In event of conflict of rights, and in default of express statute for the special case, the controversy shall be decided in favor of the party seeking to avoid a loss and not in favor of the one seeking to make a gain; if the conflict is between equal rights, or of the same kind, it shall be decided by observing the greatest possible equality between the interested parties.

66

Just as in the United States the Anglo-Saxons brought over their common law" and gave to us our legal institutions, the Spanish emigrants carried with them their system. This has survived a political dismemberment, and even under the republican form of government existing, or supposed to exist,

1 Compendium of the laws of Mexico officially authorized by the Mexican Government, etc. By Joseph Wheless, St. Louis, the F. H. Thomas Law Book Co.,

Hall, Frederick. The laws of Mexico

1910. 2 v.

1885. 840 p.

San Francisco, Bancroft & Co.,

in Mexico, the Spanish codes have been drawn upon for material. It must be mentioned also that the Novísima recopilación is in force in certain regards and frequently cited in the trial of cases.

Codes, supplemented by a few special statutes, cover every subject and branch of the law. These attempt to embody legal principles as well as positive laws and rules.

In referring to the Mexican codes one ordinarily intends the national or federal codes in force in Mexico City or federal district and the territories. The Republic's name, "Estados Unidos Mexicanos," shows that it is a federation or coalition of various States, but in practice the separate entity of the individual State does not exist to the same degree as in the United States of North America. It is true that in theory each of the 27 States is "free and sovereign," and each has its own legislative body with plenary powers of legislation, as limited by the provisions of the State and National constitutions. Even a cursory examination of the constitution of the Republic (adopted in 1857, but amended many times) will show that its provisions would tend to cause a uniform system of laws. The States are apparently created and their boundaries and limits are defined by the constitution. The President has certain powers in respect to the appointment of governors within the States and other unusual rights are vested in the federal government. The commercial and mining codes (constitution, art. 72, sec. 10) are made obligatory throughout the Republic, and in practice the other federal laws are readopted nearly verbatim by the individual States. It might be said with fair accuracy that a uniform substantive law exists in all parts of Mexico with a possible local variation in matters of small importance.

In passing there must be contrasted the unfortunate situation in our United States, with its 50 different systems, which, though arising from a common origin (excepting Louisiana, whose law is based upon the civil law), offer frequently as many different variations. But possibly for the profession this is preferable, as it affords more work for the lawyers.

The federal codes and statutes, popularly called the "National Code," are enacted and promulgated by the congress, just as with us. This "National Code" consists of a civil code, a commercial code, code of civil procedure, penal code, code of criminal procedure, code of military law, stamp-tax law, a mining law, the código de extrangería (or code for foreigners), a sanitary code, code of extradition, and a manual for notaries.

Although Mexican legislation is supposed to attempt precision it is far from being concise, and much matter is duplicated. Frequently there is found illogical sequence. This is especially true within chapters of a particular title of a code, and the resulting disarrangement of logical order of statement of cognate propositions of law is troublesome to the investigator. It must be admitted, however, that the general plan of the code as far as books, titles, and chapters are concerned is one of scientific arrangement.

As the code and statutes are enacted they are published in the official daily gazette of the government, El Diario Oficial. Unfortunately, there exists no collecion of "revised statutes" or official compilations of all the laws, the government having been extremely neglectful in this particular. They are edited and published in practical form, usually in numerous small volumes, by private parties.

An oddity exists in Mexico in regard to the time when the laws, statutes, and regulations enacted or passed by the legislative body take effect. The Código Civil provides, in articles 2 to 4, as follows, quoting from Wheless's translation: