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à clearness of vision and capacity for self-control never equalled by any other nation.” These powers have come through the active participation in the duties of self-government. If participation be denied the citizen, these powers so vital to the success of a democracy will become atrophied. If the control of a majority of his affairs be administered from a remote seat of government, where he 1:0 longer can feel a personal contact with the means for conducting those affairs, it is inevitable that his interest will wane and such participation as he does take in governrient will be at best only perfunctory or may cease altogether. It is becoming more and more difficult to persuade the people to go to the polls at election time; they know little of the men on the ticket and less about their conduct after election.

Whether or not we are over-centralized today, it is certain that what centralization we do have, has been due in large measure to the establishment of executive departments where those who are charged with the duties thereof have in their zeal and enthusiasm tended to increase and expand the functions of their offices. The establishment of these agencies has gradually caused the people to look to the government at Washington for help and the tendency has been more and more to break down the habit of self-reliance, initiative, and the assumption of responsibilities.

The great need of the present time is new standards by which future actions can be measured in terms of proper functions of the national government and those of the state governments. Whenever centralization reaches the stage where the people lose their initiative and become dependent, begging alms from a paternalistic government, it is time to pause for bearings that our course may be mapped anew. To this end may we hope that critics will not find fault only, but will evolve criteria by which the people of these United States can chart their course without wrecking the Ship of State either upon the rocks of centralization or upon the shoals of States' Rights.


Henry Baldwin: A General View of the Origin and Nature of the United States Constitution.

J. M. Beck: The Constitution—Yesterday, Today and Tomorrow.
James Bryce: The American Commonwealth.
John Elliott: United States Constitution-Debates, etc.
J. A. Fairlie: The National Administration.
John Fiske: The Critical Period.

Jameson J. Franklin: Essays in the Constitutional History of the United States in the Formative Period.

Paul Fuller: Expansion of Constitutional Powers.

J. C. Guggenheimer: The Development of the Executive Depart. ments-1775-1789.

John P. Hill: The Federal Executive.
H. B. Learned: The President's Cabinet.
F. S. Oliver: Alexander Hamilton-An Essay on American Union.

Lloyd M. Short: The Development of the National Administrative Organization in the United States.

F. J. Stimson: The American Constitution.
Von Holst: Constitutional and Political History of the United States.
W. F. Willoughby: The American Constitutional System.

W. F. Willoughby: The Re-organization of the Administrative
Branch of the National Government.
Woodrow Wilson: The State.

The Federalist-No. 15.

Madison Papers-Vol. 1. Albert E. Ritchie: Back to States Rights; World's Work, March, 1924.

Bentley W. Warren: Destroying the Indestructible States; Atlantic Monthly, March, 1924.

Records of the Federal Convention of 1787; Yale University Press, 1911.

The Source of Federal Paternalism; New Republic, June 24, 1925.

George M. Soule: Federalism as a Method; New Republic, Feb. 11, 1923.

William Grant Brown: Shall We Hold to Democracy; Forum, May, 1922.

Donald Wilhelm: Growing Pains of Government; Independent, Nov. 8, 1925.

President Coolidge: Memorial Day Speech, May 30, 1925.

Herbert Hoover: 200 Bureaus, Boards and Commissions; Nation's Business, June 5, 1925.

Historical Backgrounds of the Constitution Number II; Constitutional Review, October, 1925.

James M. Wadsworth: Let's Stop This Fifty-Fifty Business; Nation's Business, March, 1926.

James H. Ryan: Proposed Monopoly in Education; Atlantic Monthly, February, 1924.

H. H. Powers: Receding Tide of Democracy; Atlantic Monthly, April, 1924.

George Madden Martin: American Women and Paternalism; Atlantic Monthly, June, 1924.

C. H. Greathouse: Historical Sketch of the Department of Agriculture.

W. H. Lamport: Speech on the Department of Agriculture.
J. M. Swank: Department of Agriculture.
E. Newton: Agriculture Bureau Speech.



By CHARLES SUMNER LOBINGIER, * (Professor of Civil Law, Na.

tional University; formerly judge of United States Courts in Cuba and the Philippines.)

HE term "commercial law" is not a scientific one and

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distinct branches. But one of them, which is everywhere recognized as "commercial", is what is known in the AngloAmerican law as negotiable instruments. Throughout the western hemisphere that subject has now been codified and the way opened for an approach to uniformity.

Broadly speaking, these codifications divide, as do all other branches of law in this hemisphere, into no more than two groups—Civil and Anglo-American. Fundamentally, they are not widely separated. Some features of both hark back to the Roman law, but more of them derive from the customs and practices of mediaeval (especially Mediterranean) traders.


Civil Law

In Civil law countries, negotiable instruments and other commercial subjects are treated mainly in Codes of Commerce, although the Civil Codes likewise contain considerable material thereon. South of the Rio Grande, these Codes of Commerce have, until recently, been entirely of Civil law origin. But they are far from uniform. Many

.' find their source directly or indirectly in the French Code

* Read before the Comparative Law Society of Washington, D. C., March 30, 1926. Judge Lobingier has recently returned from an official visit to Cuba in connection with a survey of the Cuban laws, and the materials for this address are one result of his investigations there. Ed.

See Mitchell, the Law Merchant, (Cambridge, 1904), 161; Jenks, The Early History of Negotiable Instruments, Select Essays in AngloAmerican Legal History, III, 51.

?P. J. Eder, Uniformity of Laws of Bills of Exchange, (Washington, 1916).

of Commerce of 1807-8, upon which the Spanish Code of Commerce of 1829 was based.**

The earliest Latin-American Code, including bills of exchange, was the Brazilian, appearing in 1850.' The present Spanish Code of Commerce was promulgated in 1885, somewhat more than one hundred of its articles being devoted to Negotiable Instruments. It was extended to the Spanish colonies in 1886, but has been superseded in Panama and the Philippines, which retain the Spanish Civil Code, by the Uniform Negotiable Instruments Law discussed hereafter.

Cuba is unique as being the only country, outside of Spain itself, where the Spanish law, in the private and commercial field, prevails in toto. Most of the other Spanish American states separated from the mother country before the first of her modern codes was promulgated and, while following, like her, the French models, produced instruments differing considerably from hers. Porto Rico, though once in the same situation as Cuba, has effected important changes in the Spanish law. The Civil Code has been thoroughly revised and amended, a corporation law was enacted' and, last but not least (for it has a vital bearing on the enforcement of commercial law), a new and simplified code of procedure was adopted. Similar results have been achieved in the Philippines. For, although, the Civil Code there has never been revised, it has been considerably amended, both expressly and by implication, while entire titles of the Code of Commerce have been displaced by comprehensive statutes like the Corporation Law,' the Negotiable Instruments Law," and many others; and the Code

2* See Reinhold v. Pudding, 29 La. Ann. 552, 554, as to the abortive project for a Code of Commerce in that State.

'Id. 4.

'Code of Commerce, Arts. 443 et seq.

'See my article "Modern Civil Law," Corpus Juris, XL.


See Report of the Commission to Revise and Compile the Laws of Forto Rico (Washington, 1901).

Act No. 30, 1911, Compilation of Laws, Arts. 407 et seq.

Mch. 10, 1904, Compilation of Laws, Arts. 4985 et seq.

Act 1459. 10 Act 2031.

of Civil Procedure," adopted in 1901, has made possible the much more expeditious enforcement of commercial rights. In Cuba, however, the commercial law remains practically as it was when Spain withdrew.

Cuba's Strategic Position


Geographically, the island of Cuba lies midway between the respective western hemisphere domains of the Civil and Common law. Juridically, as we have just seen, it belongs to the former; but commercially it is much more closely linked up with the field of the latter.

Out of a total of $290,372,702 worth of imports into Cuba in 1924, the amount furnished by the United States was $192,115,060; by Spain, $14,521,013. Of the $434,865,295 worth of exports from Cuba, those received by the United States amounted in value to $362,264,908. In other words, the United States furnished 66.1 per cent of Cuban imports, and took 83.3 per cent of Cuban exports." Added to this is the stupendous fact that more than a billion and a half of American dollars have been invested in Cuba.

Such being the actual conditions, there is obviously no inherent reason why Spanish law as such should continue to govern exclusively Cuba's international trade. Recognizing the priority of that law in general and the presumption in its favor from long continuance, we may still legitimately inquire whether, on its commercial side, it is adequate for the new and extraordinary economic conditions indicated by these figures. And such an inquiry will disclose a feeling, prevalent and profound, among business men, bankers and lawyers of diverse nationalities in Cuba, that the strain upon her legal machinery occasioned by this vast expansion of her international trade, has revealed serious defects in the local laws, which must be remedied if her commerce is to continue its phenomenal growth or even to hold its own.

n Act 190.

12 Secretaria de Hacienda, Seccion de Estadistica (1924). The figures are those of the U. S. Trade Commissioner at Havana as reported to the U. S. Department of Commerce.

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