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Iowa Law Review
Volume XVI JUNE, 1931 Number 4

THE DEVELOPMENT OF LAW IN THE PHILIPPINES

N the December (1930) number of the Iowa Law Review an ac-
count was given of the establishment in the Philippines by the
United States of a popular representative form of government,
modeled after the typical American state constitution, and of cer-
tain modifications therein effected in its actual administration.
With the American acquisition of the Islands there came very
rapidly a complete change in the old political order. A distinctly
new and different political era began. Simultaneously there also
began the development of a new system of jurisprudence. A new
judicial era was inaugurated. The Islands, however, were not virgin
territory to which an Anglo-American system of law could be trans-
planted, as was done with an American political system. Prior to
American occupation there existed an extensive judicial system.
The new era did not suddenly displace this. As Lord Bryce has
very aptly remarked, "Law is a tenacious plant, even harder to
extirpate than language."' The progress in the legal field was more
gradual than in the political field. While abrupt and fundamental
changes occurred as regards a large part of the public law, the main
body of the existing law affecting private rights was preserved.
But this very soon began to undergo important modifications. Con-
siderable portions of the civil law of the Spanish regime were either
displaced by American-derived statutes or were essentially in-
fluenced by Anglo-American case law applied in the earlier and
formative years in courts organized and administered by American
lawyers. A Philippine jurisprudence drawn largely from civil law
and common law sources is resulting.
The Spanish civil law and judicial system occupied extensively
the Philippine territory prior to American sovereignty. There were
other elements, however, in the body of law. In the Sulu archipelago
to the south the Mohammedan law, one of the three great judicial
' Select Essays in Anglo-American Legal istory, 593.
 IOWA LAW BEIEW

systems that have become the law of more than one nation or sov-
ereignty, was recognized. The Moros had developed successively
several codes drawn from Arabic sources. The Luwaran was the
principal and latest code and stood next to the Koran in authority.
Formally, at least, it was accepted as the law of Moroland and com-
2
pliance with it was made a virtue.
The local customary Malay law, said to have been extensively de-
veloped, was explicitly recognized in.Article 6 of the Spanish Civil
Code of 1889, which provided that "the customs of the place shall
be observed." 3 There was also a body of canon law which had sig-
2 N. Al. Saleeby, Studies in Moro History, Law and Religion (1905), 64-66.
"The laws that are embodied in the Luwaran are old Arabic law and were
translated and compiled for the guidance and information of the Mindanao
datus, judges and panditas who do not understand Arabic. The Mindanao
copies of the Luwaran give no dates at all and nobody seems to know when
this code was made. They say it was prepared by the Mindanao judges some-
time ago. .. They used the Arabic text as a basis, but constructed their
articles in a concrete Xorm, embodying genuine examples and incidents of
common occurrence in Mindanao."y
But there is divergence of opinion as to the existence and merits of Moro
law: "After a year of diligent investigation and study of this question, it
has been found that the Mforos and other savage peoples have no laws,-
simply a few customs, which are nowhere general, varying from one village to
the next, from one island to another." Annual Report of the Governor of the
More Province, September 1, 1904. To the same effect: "It was found that
the customary laws of the Moros and non-Christians are either non-existent
or so vague and whimsical as to be impracticable of administration in courts
of justice." Annual Report of the Governor of the Moro Province, July 10,
1905.
3 There are very few instances in the Philippine Supreme Court reports of
recognition of local customs. In Carifio v. The Insular Government, 7 Phil-
ippine 132 (1906); 212 U. S. 449, 29 Sup. Ct. 334 (1909), the court sustained
title to land held in accordance with an Igorot custom. But in Cacho v. The
Government of the United States, 28 Philippine 616 (1914), the court de-
clined to sustain a land title based on Moro customs and codes. In the trial
courts recognition of customary law is doubtless more frequent but the record
of it is not available. In the Philippines, as elsewhere, local usages and cus-
toms, which may be called the "living law" as contrasted with the formal
law, operate outside of judicial tribunals, especially if they differ from the
formal law. Although it is said that there is a large body of customary law
in the Islands, no compilations of it have ever been made. Professor H. Otley
Boyer, of the Department of Anthropology of the University of the Philippines,
has a considerable amount of unpublished material. In his opinion there is
this body of living law which actually is operative in the various communities.
Anyone who seeks to disregard it, however, by resorting to the courts and the
formal law, comes into bad repute. Under the auspices of the American Coun-
 DEVELOPMENT OF LAW IN THE PHILIPPINES

nificance in a country where the Church was so closely identified

with the State.
No attempt will be made in this paper to consider the extent and
influence of the last mentioned elements in Philippine law. The
discussion will be limited to the Spanish law and the extent to
which it has been and is being superseded or modified by the intro-
duction of Anglo-American law.
Following the usual rule of international law, most of this exist-
ing law governing private rights was expressly continued in force
in the beginning of American occupation.4
Spanish jurisprudence may be conveniently described in two
periods: (a) the pre-codification period; (b) the codification period
beginning in the last quarter of the nineteenth century. Prior to
the modern Spanish codes, whose promulgation began in the early
part of the nineteenth century and whose promulgation and exten-
sion to the Philippines was completed before the end of the century,
the written law of Spain and its dependencies consisted largely of
general collections or compilations more or less systematically ar-
ranged and covering most of the fields of law. One of the earliest
collections or compilations, promulgated about the middle of the
5
seventh century, was the Forurm Judicum. For more than three
centuries it remained the sole compilation of the general laws of
Spain.6 The next important collection or codification was the well-
cilof Learned Societies, a research in Indonesian Customary Law is being
conducted. Dr. Frederick W. Holleman, of the School of Higher Legal Studies
of Batavia, during 1931 will spend some time in the Philippines for the pur-
pose of making a survey of materials there relating to customary law.
4In his instructions to the military authorities and to the Philippine Com-
mission, President McKinley said: "The main body of laws which regulate
the rights and obligations of the people should be maintained with as little
interference as possible. Changes made should be mainly in procedure, and
in the criminal laws to secure speedy and impartial trials, and, at the same
time, effective administration, and respect for individual rights." These in-
structions were followed by the courts: See opinion of Mr. Justice Day in
Perez v. Fernandez, 202 U. S.80, 26 Sup. Ct. 561 (1906). The day following
the capture of Manila by the United States Army, the Commander of the Army
issued a proclamation stating that "for the present it is ordered that the
municipal law, such as affect private rights of persons and property, regulate
local institutions and provide for the punishment of crime, shall be considered
as continuing in force."
r Also known as the Fuero de los Jueces or Fuero Juzo. See Preface, The
Visigothic Code, by Scott, XXIV. It is commonly known under the title of
"The Visigothic Code" as translated by Scott.
6 In Legarda v. Valdez, 1 Philippine 148 (1902), the Fuero Juzco was con-
 IOWA LAW REVIEW

known Siete Partidas, largely a compilation of Roman law mod-

ified by local customs. It was first given the force of law in 1348 by
action of Cortes of Alcala, and after a series of modifications, was in
its final form promulgated in 1505.7 In all the earlier volumes of
the Philippine Reports the Partidas is often cited and even in the
later volumes its citation is to be found.8 Other compilations were
Las Leyes de Toro dealing with the subject of wills, succession and
the support of illegitimate children; in 1567 there appeared La
Nueva Recopilaci6n; and in 1805 La Novisina Recopilaci6n which
continued to be the chief embodiment of Spanish general legislation
until the enactment of the special codes. All these compilations deal
primarily with private rights. 9 In 1680 there was a compilation of
the royal decrees issued from time to time for the government of the
Spanish colonies, and commonly known as Las Leyes de Las Indias.
By force of decrees contained in this compilation, and other royal
decrees, all the existing compilations of Spanish law became an
essential part of the legal system of the Philippine Islands and are
cited in Philippine cases.20 So far as they were not superseded by
the subsequent Spanish codes, they were continued in force by
presidential proclamation on the establishment of American sov-
ereignty over the Islands. 1'
In the nineteenth century there began in Spain a codification
suited to prove that the penalty of banishment was not a "cruel and unusual"
punishment.
7 1 Sanchez Roman, Derecho Civil, 283 et seg. Lobingier; "Spanish Law in
the Philippines," I Phil. L. Rev. 597. "The Partidas is still the basis of
Spanish Common Law, for the more recent compilations are chiefly founded on
it, and cases which cannot be decided either by these compilations or by the
local fueros must be decided by the provisions of the Partidas." 4 Dunhan,
History of Spain, 109.
s For a list of citations, as well as an extensive tabulation of Spanish law
in the Philippines, see Jos6 P. Laurel, "'Lessons to be Derived by the Phil-
ippine Islands ;from the Legal History of Louisiana," 2 Phil. L. J. 8-26;
63-95.
91 Sanehez Roman, Derecho Civil, 372-386; 402419.
1o United States v. Laguna, 17 Philippine 532 (1910). Fuero Real cited on
the proposition that under Spanish system a person was not in jeopardy until
there had been a final judgment in the court of last resort. Likewise, Las
Leyes do Toro which contained the law applicable to the status of natural
children prior to the promulgation of the Civil Code. Capistrano v. Gabino,
8 Philippine 135 (1907).
11 Forbes v. Tiaco, 16 Philippine 531 (1910) ; 'Willard, Notes to Spanish Civil
Code, 39-40.
 DEVELOPMENT OF LAW IN THE PHILIPPINES

movement which resulted before the end of the century in a series

of codes which were in large part specifically extended to the
Philippine Islands and acquired the force of statute law. The prin-
cipal codes and special laws with the dates of their extension to the
Philippines are as follows: Penal Code, 1887; Code of Commerce,
1888; Ley Provisional, Code of Criminal Procedure, and Code of
Civil Procedure, 1888; Civil Code, 1889 (except portion relating
to marriage, thus reviving a portion of Marriage Law of 1870) ;
Marriage Law, 1870; Mortgage Law, 1889; Railway Laws, 1875
and 1877; Law of Waters, 1866. These codes and special laws to
a considerable extent, but not entirely, superseded the existing com-
pilations which have already been mentioned. These older com-
pilations, however, continued to be referred to, and even after the
promulgation of the codes, still possessed in some instances per-'
suasive if not controlling influence.
Along with these codes, preceding and following their promulga-
tion and extension, there were produced approximately one hundred
volumes of decisions of the Supreme Court of Spain construing and
interpreting this written law. While the doctrine of stare decisis
is said to have no recognition in Spanish jurisprudence, it is im-
possible to ignore the persuasive effect of the decisions of the
Spanish court.
In addition to these judicial decisions there are the well known
learned commentaries on the Spanish codes and Spanish laws by
Manresa, Sanchez Roman, Blanco, Viada and others. These com-
mentaries, together with the decisions of the Spanish court, are
essential parts of the jurisprudence of Spain and of the Philippines.
To understand the nature and spirit of that jurisprudence requires
resort to this material. During the Spanish regime in the Islands
such resort was frequent. They are still consulted.
From the foregoing summary it is apparent that at the beginning
of American sovereignty in the Islands there was a complete system
of law, very largely statutory, surrounded by a body of judicial
interpretation and accompanied by learned commentaries. This
jurisprudence was essentially civil law in origin and spirit.
With the establishment of American sovereignty extensive changes
in the law of the Islands occurred. These changes were (a) auto-
matic, as a result of the change of sovereignty; (b) legislative, either
by acts of the United States Congress or by action of the local
Philippine legislative body; (c) by judicial interpretation. Auto-
matically there ceased to be operative the Spanish law regarding
sovereignty, the rules regulating the relations of the inhabitants of
 IOWA LAW BEVIEW

the Islands with the sovereign power, the form and organization of
governmental powers, the regulations for their exercise, and, in
short, all Spanish public law, except the criminal law. Likewise,
all Spanish law, customs and rights of property inconsistent with
the American Constitution, principles and institutions were super-
seded. 12 A new body of public law, Anglo-American in origin and
spirit, became operative. While the Constitution of the United
States has never been formally extended over the Islands, its funda-
mental guarantees have been regarded as operative in this territory.
Of the legislative changes by Congress, the most important are
the two Organic Acts.13 In addition to providing for the scheme of
government, these Acts contain a bill of rights embodying the
guarantees usually found in American constitutions. The Supreme
Court of the United States has held that these guarantees are to be
interpreted as meaning what like provisions meant in the United
States at the time when Congress made them applicable to the Phil-
ippines.1 4 Another body of statute law derived directly from the
United States and constituting an integral part of the laws of the
Islands consists of the orders of the President and certain acts and
resolutions of Congress dealing specifically with the Philippines or
which have been extended to the Islands.15 This entire body of
public law and the statute law thus directly derived rests clearly
on English common law principles. Moreover, the Supreme Court
of the United States has jurisdiction over all judgments of the Su-
preme Court of the Philippine Islands in cases in which the Con-
stitution or any statute, treaty, title, right or privilege of the United
States is involved. The decisions of this Court in such cases are
binding on the Philippine courts.'" Thus in a large and important
field of the law an American court, trained in the traditions of
Anglo-American law and working under its influence, can and does
12 Alvarez y Sanchez v. United States, 216 U. S. 167, 30 Sup. Ct. 361 (1910).
13 32 U. S. Stat. at L., c. 1369, Act of July 1, 1902; 39 U. S. Stat. at L1., c.
416, Act of August 29, 1916.
14 Serra v. Mortiga, 204 U. S. 470, 27 Sup. Ct. 343 (1907) ; Roa v. Collector
of Customs, 23 Philippine 315-339 (1912).
i5 Malcolm, Philippine Constitutional Law, 211-230; U. S. v. Bull, 15 Phil-
ippine 7, 21, 27 (1910); Roa v. Collector of Customs, 23 Philippine 315-339
(1912); U. S. v. Balcorta, 25 Philippine 273 (1913); Tan To v. Bell, 27
Philippine 354 (1914).
'a Bryan Landon v. American Bank, 7 Philippine 255 (1906) ; U. S. v. Pico,
18 Philippine 386 (1911).
 DEVELOPMENT OF LAW IN THE PHILIPPINES

render decisions of far-reaching effect and which constitute an im-

portant part of the present Philippine jurisprudence.
The changes which came about as a result of the exercise of local
legislative power were likewise extensive and fundamental. During
the first years of American occupation there was great legislative
activity and a very large body of statute law became operative.
Roughly speaking, this earlier period of legislative activity may be
divided into (a) the period of military occupation, ending Sep-
tember 1, 1900; (b) the period of the Philippine Commission ending
in 1907; and (c) the period of the Philippine Commission and the
Philippine Assembly ending in 1916. During the first period,
American influence and control were complete. In the second
period, Americans trained in the principles of the common law
constituted the majority of the Commission and drew very largely
from American models in framing legislation. Under the leader-
ship of the late Chief Justice Taft, aided by a group of able
American lawyers, Philippine statute law underwent essential
changes. Through the third period down to 1913, the American ma-
jority in the Commission continued to exert a controlling influence.
Even after the majority of the Commission passed to the Filipinos,
American influence in legislation continued paramount. It was not
until 1916 that an all-Filipino legislative body came into existence.
Even that body, however, under the influence of its immediate pre-
decessors and of the American Governor-General, drew its various
enactments largely from American sources. These common law in-
fluences thus operative during a period of great legislative activity
necessarily profoundly affected Philippine jurisprudence.
Of the legislation of the period of the military regime, the two
most important acts were: General Orders No. 58 providing, in a
notably short, compact and concise form, a complete system of
criminal procedure, which displaced the old Spanish code from
which it differed fundamentally. It was American in origin and
structure, and secured to the accused all the rights to which he is
usually entitled in the United States, except trial by jury. With a
few minor changes, it remains the law today. General Orders No.
68 displaced the provisions of the Partidas governing marriage,
secured liberty of marriage and provided regulations for the in-
stitution of civil marriages.
The seven-year period of the Philippine Commission was one
remarkably fruitful in fundamental legislation. Approximately
1800 laws were enacted. In the first year of the Commission's ex-
 ZOWA LAW .BRYIBW

istence, an entirely new Code of Civil Procedure, based upon the

codes of California, Vermont, Ohio and other states, was passed,
completely displacing the Spanish code and providing radical de-
partures from Spanish jurisprudence, abrogating the challenging
of judges, doing away with the civil liabilities of judges and jus-
tices, and requiring that sittings and proceedings of every kind
should be public.
Act 136, also passed in the early years of the Commission, pro-
vided for a complete reorganization of the system of courts from the
highest to the lowest, setting forth the constitution of the courts and
their jurisdiction, prescribing the number and qualifications of the
judges and subordinate personnel and rules and regulations for the
exercise of judicial functions.
From the beginning of American occupation, therefore, the ad-
jective law of the Philippine Islands has been of American origin.
This extensive change in the adjective law affected in many in-
stances important substantive rights and resulted in the modification
or superseding of provisions in the other codes.
In the field of substantive law there were enacted the corporation
law drawn entirely from United States sources; the chattel mort-
gage law which changed essentially the Spanish law on this subject;
an act providing for the Torrens system, based on the Massachusetts
law of 1898 and which superseded the Spanish mortgage law; an
act defining property in trade marks and trade names; and a com-
mon carriers act. Other important legislation was passed: a mu-
nicipal code, a general provincial government act, a special pro-
vincial government act, a special charter for the City of Manila,
an organic act for the Department of Mindanao and Sulu, a civil
service law, an election law, an internal revenue act, a public land
law, a forestry law, a pure food law, and regulations governing the
practice of the professions of law, medicine, pharmacy and den-
tistry.
During the period of the Philippine Assembly and Commission
the following important legislation may be noted: the enactment of
a bankruptcy and insolvency law; a negotiable instruments law and
the warehouse receipts act, both practically identical with the Uni-
form Acts of the United States on this subject; an irrigation law;
a motor vehicle law; an act for the registration of patents; a ca-
dastral survey act; an insurance act; the creation of a public utility
commission.
These and many other acts introduced into the Philippines, a
 DEVELOPMENT OF LAW IN THE PHILIPPINES

country whose existing law was almost entirely statutory, a large

body of new statute law drawn from American sources. Such in-
troduction necessarily had a profound effect upon Philippine juris-
prudence. Add to this the fact that during many years the adminis-
tration of this law and its application in the courts were very
largely in American hands.
It is difficult to say to what extent this new body of statute law
has displaced the Spanish codes and compilations, especially since
the legislative body frequently failed to make an express repeal of
inconsistent statutes and left to the bench and bar .the task of decid-
ing how much of the old law has disappeared by implication. The
Spanish Penal Code probably remains least affected, although many
of its provisions are modified by later enactments and new crimes
have been created. Next in order of survival is the Spanish Civil
Code with its wide range of subjects affecting rights of persons and
property; but some of the provisions of this code have likewise
suffered implied repeal or modification to a slight or great degree.
Justice Willard, a former learned member of the Philippine Su-
preme Court, attempted in his "Notes to the Spanish Civil Code"
to determine what portions of the code are still in force, but there
is much difference of opinion as to the correctness of his conclusions.
In the language of Justice Mlooreland:
"The great body of our law is of Spanish origin and comes to
us and is enforced by us upon the theory that it has survived. As a
result, this court is continually called upon to adjudicate the ques-
tion whether a given Spanish law is still in existence. Parties are
unceasingly asserting rights of property and of persons based upon
such laws. The assertions are as frequently denied. It is a subject
over which the best judgments differ and a question over which un-
certainty continually holds sway." 17
There is a difference of opinion as to how much of the Spanish-
derived statute law continues in force. As Mr. Justice Mooreland
says in the quotation just given, "The great body of our law is of
Spanish origin." On the other hand, the court in In re Shoop1
speaks of "the remnants of the Spanish statutes" and says "the
bulk of present day statute law is derivative from Anglo-American
sources: derivative within the sense of having been copied, and in
the sense of having been enacted by Congress or by virtue of its
17 Forbes v. Tiaco, supra. See Willard, Notes to the Spanish Civil Code;
also Malcolm, 4"Philippine Law," 11 11L L. Rev. 334-343.
isithre Shoop, 41 Philippine 213 (1920).
 IOWA LAW BEBIEW

authority." Even the Spanish Civil Code which, with the Penal
Code, constitutes the most important part of the remaining Spanish
statutes, the court says "has been largely modified."
The truth probably lies between these two estimates. The Span-
ish statute law still constitutes an important part of Philippine
jurisprudence. This is especially true as regards the Civil Code,
although many of its sections have been either superseded or modi-
fied. These surviving portions deal with a large range of subjects
affecting rights of persons and property. The entire subject of
obligations, property rights, ownership, purchase, sale and barter,
inheritance and intestate succession, partnership, agency, bailments,
suretyship, personal status and many others of equal importance
are governed by the Civil Code. The Penal Code, although modified
in some respects and supplemented by specific legislation, remains
the chief repository of criminal law.
The changes which have resulted through the great legislative
activity just described are important; but no less important are the
changes which have taken place and are still taking place as a re-
sult of judicial interpretation of this statute law. The significance
of judicial interpretation is all the greater, because the legislative
activity, during which most of the laws affecting private rights were
enacted, occurred in the early years of American occupation, greatly
diminished by 1912 and practically ceased by 1916. There is a com-
paratively small amount of statute law since that date which deals
with the essentials of either substantive or adjective law. Most of
the legislation is concerned with the organization of the powers of
government and regulations for their exercise, police legislation of
various sorts, laws designed to promote certain industries, and the
appropriation of money.'9 Whatever growth and development have
taken place in Philippine jurisprudence during the past fifteen or
twenty years has been very largely in the courts and through ju-
dicial decisions rather than in legislation. It is through these de-
cisions, interpreting and applying a large mass of statute law, some-
times overlapping and inconsistent, that the doctrines of the common
19 A codification movement was begun in 1909 and 1910 by the appointment
of a committee to revise the civil, commercial, penal and procedural codes and
other acts and to prepare new codes. This committee was also authorized to
revise, compile and codify the existing general statutes of the Philippine Com-
mission and the Philippine Legislature. The only thing that has come out of
this movement, however, is the Administrative Code adopted in its final form in
1917. This is largely a codification of the administrative law produced since
American occupation.
 DEYELOPMENT OF LAW IN THE PHILIPPINES

law have received great recognition and have become embodied in

Philippine jurisprudence and have effected a change in the elements
which constitute the foundation of that jurisprudence.
In administering the American-derived statute law, the Phil-
ippine court has repeatedly held that it will be governed by the
Anglo-American cases. 20 In Alzua and Arnawot v. Johnson,21 the
Supreme Court of the Philippine Islands, in passing upon an ob-
jection of counsel, that while a certain rule was universally recog-
nized and applied in the courts of England and the United States,
it was not the law in the Philippine Islands, said:
"To this we answer that while it is true that the body of the
Common Law as known to Anglo-American jurisprudence is not in
force in these Islands, 'nor are the doctrines derived therefrom
binding upon our courts, save only in so far as they are founded on
sound principles applicable to local conditions, and are not in con-
flict with existing law' (U. S. v. Cuna, 12 Phil. 241) ; nevertheless
many of the rules, principles and doctrines of the common law have,
to all intents and purposes, been imported into this jurisdiction, as
a result of the enactment of new laws and the organization and es-
tablishment of new institutions by the Congress of the United States
or under its authority; for it will be found that many of these laws
can only be construed and applied with the aid of the Common Law
from which they are derived, and that to breathe the breath of life
into many of the institutions introduced in these Islands under
American sovereignty recourse must be had to the rules, principles
and doctrines of the Common Law under whose protecting aegis the
prototypes of these institutions had their birth."
An examination of the reports of decisions of the Philippine
supreme court will show that Anglo-American decisions and
authorities are used and relied upon to a very large and increasing
extent. The net result is that there is being developed in connection
with this American-derived legislation a substantial body of case
law essentially Anglo-American in spirit and constituting in a
general sense a body of Philippine common law. The distinctly
American elements in Philippine jurisprudence are apparent: the
entire body of public law, 22 presidential orders and congressional
acts directly or indirectly applicable to the Philippines, together
20 U. S. v. De Guzman, 30 Philippine 416 (1915); U. S. v. Cuna, 12 Phil-
ippine 241 (1908); Cerezo v. Atlantic Gulf & Pac. Co., 33 Philippine 425428
(1916).
21 Alzua & Arnalot v. Johnson, 21 Philippine 308 (1912).
22 The Spanish Penal Code of 1887, as amended under American sovereignty,
considered as a public law, should be excluded.
 IOWA LAW BEVIEW

with the judicial interpretations and applications made by the Phil-

ippine and the United States Supreme Courts. To these should be
added the locally enacted American-derived statutes with their body
of judicial interpretation by the local supreme court, based largely
on Anglo-American cases.
It remains to consider what has been the growth and development
with regard to the surviving portions of the Spanish-derived law.
As has been pointed out, this law can be said in a general sense to
have carried with it, when it was continued in force, a surrounding
body of judicial interpretation and commentary. While it is recog-
nized that the Spanish case law is only of persuasive and instructive
value and that the commentaries have no binding force, still this
material has been much used, especially in the earlier years, in the
interpretation and application of the surviving Spanish statutes;
not to the extent and with the same effect, perhaps, as the Anglo-
American case law with respect to the American-derived statutes.
But what is significant as showing the influence of the common law
is found in the fact that the court in dealing with the surviving
Spanish statute law resorts not merely to the Spanish case law and
commentaries but makes free and ever increasing use of Anglo-
American case law. This use has been "for the purpose of showing
that Spanish law and the Anglo-American law is the same and
frequently it is for the purpose of amplifying or extending statutes.
In most cases it is for the purpose of applying those statutes to the
particular case before the court; but whatever the use, the fact
remains that through the influence of these cases a broad exposition
of American case law is made" and "Anglo-American case law
plays a very large part in amplifying and applying the law on
those subjects which are still governed by the remaining portions
of the Spanish statutes.' '23

The best evidence of the extent to which Anglo-American cases

are used in interpreting the Spanish statutes is found in the fre-
quency with which those cases are cited in the reports of decisions.
While the earlier reports show that the citations of Spanish cases
and commentaries was more frequent than reference to American
authorities, the later reports show the contrary.24 To the increase
23 In re Shoop, upran. 18, at 240-44.
24 In a tabulation contained in the opinion in the case of In re Shoop, it
appears that in volumes 20 to 39, inclusive, of the Philippine Reports, United
States authorities are cited 3,810 times; Philippine cases, 2,752; Spanish cases,
361; and English cases, 52. The American citations are over ten times as
 DEVELOPMENT OF LAW IN THE PHILIPPINEE

in the direct citation of American cases should be added the cumu-

lative effect of the ever increasing citation of Philippine cases
carrying American citations. It is but natural that with such a
large body of American statute law to be interpreted and applied,
the court should, in dealing with the Spanish statutes, approach
them under the influence of the common law and perhaps breathe
into these statutes of civil law origin much of the spirit of the
common law.
It would not be correct to say, however, that the civil law de-
rived Trom Spain has passed from Philippine jurisprudence. It
still occupies an influential place. Its influence has, however, di-
minished as a result of this extensive introduction of American-
derived statutes and by the use of Anglo-American case law in the
interpretation and application not only of these statutes but also
of the Spanish-derived statutes which survived. The common law
has entered very largely and its influence is increasing. The final
result may be a composite in which the features of the common
law will greatly predominate. Whether the Anglo-American law
will ever completely displace the civil law in the Philippines is
doubtful, but this much is clear, that it has profoundly and funda-
mentally affected the jurisprudence of the Islands and is playing
an increasingly important part in the growth and development of
the system of law.
The future status and influence of the civil law will be affected
largely by any codification movement that might be started and how
soon such movement is begun. In the growth and development
which has been taking place, especially during the past twenty
years, through judicial interpretation, the common law has been
exerting a great influence. This influence is cumulative. If ju-
dicial interpretation continues another twenty years, without inter-
ruption by codification, common law doctrines will gain greater
ascendency. The growth of the common law will likewise be greatly
affected by the progress and success of the movement now under
way in the United States seeking a restatement of the common law.
As the monumental work of the Digests and the Corpus Juris of
Justinian meant the preservation of the classical Roman law for
numerous as the Spanish citations. Continuing these compilations down to Vol.
50, the last published volume, the totals are as follows: United States cita-
tions, 5,692; Philippine cases, 4,634; Spanish cases, 528; and English cases, 69.
In Vol. 48 one citation, in Vol. 49,6 citations, and in Vol. 50,13 citations appear
from the Spanish supreme court. It should be noted that the list of Phil-
ippine citations carries also citations of many United States cases.
 IOWA LAW 2BEVIEW

all ages and made it a potent influence in the law of the world, so
a restatement of the common law means its preservation and in-
creasing influence in the Philippines. This restatement will supply
another convenient and influential exposition of the common law.
There will be a tendency in the Philippine courts to turn to it
as a helpful way out of the uncertainty and confusion now exist-
ing because of the overlapping and sometimes contradictory codes.
If there should be an early general codification undertaken in the
Islands much of the existing Spanish code material would be pre-
served. But if codification is delayed until the restatement of the
common law has had an opportunity to exert its influence, and
until judicial interpretation has had a longer period to affect the
existing codes, the common law elements in Philippine jurispru-
dence will be very great, if not predominating. There is no serious
attention being given in the Islands to codification. Aside from
an attempt to draft a new penal code, nothing is being done. The
present method of growth through judicial interpretation is likely
to continue for some time.
There are certain collateral influences still operating effectively
in favor of a firmer establishment of the common law. Most of the
young generation of lawyers are English-speaking and have been
educated in law schools having curricula and methods of instruc-
tion substantially similar to American law schools. The case method
of instruction is very largely used and the cases are either American
cases or Philippine decisions based upon Anglo-American cases.
The on-coming generation of lawyers is being prepared under the
same conditions. Another favorable factor is the abundance of
Anglo-American law material and its great accessibility, as com-
pared with Spanish material. The excellent system of state and
federal reports, the National Reporter System, the elaborate di-
gests, the special compilations of leading American cases, the en-
cyclopedias and treatises contribute tremendously to the influence
of the common law. The decisions of the Spanish supreme court
are not digested and for practical purposes are inaccessible directly
and are chiefly known indirectly through the commentaries. One
unfavorable factor to the further development of the common law
is the bilingual system of the courts. By statute Spanish and Eng-
lish are both official languages and the former is still much used.
This bilingual system was to have terminated in 1930, but unfor-
tunately, for the progress of the common law, it has been given a
 DEVELOPMENT OF LAW IN THE PHILIPPINES 479

further extension until 1940, notwithstanding the fact that the

great majority of judges and practicing lawyers can use English.
But whatever the outcome, this may be said: among the many
contributions which the United States has made to the Malay people
is the system of Anglo-American public law with all its fundamental
guarantees of life, liberty and property, and the genius and spirit
of the common law. These contributions will ever remain an essen-
tial part of Philippine law and institutions.
EUGENE A. GiMoRE
IOWA LAW SCHOOL