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servance of this new code, and the character of the code itself, not only show that the laws of the Goths in Spain were founded on the Roman law, but that that law was, alone, in force in that kingdom at the time, and that it was not until a subsequent period that the Roman law was at all modified by local usages and customs.
The "Fuero Juzgo," also called "Fuerode los Jueces," book of the Judges, originally published in Latin under the titie of " Forum Judicum," and, subsequently under the title of " Liber Judicum," is considered by the sages of the Spanish law as the origin of their jurisprudence. It was published at the close of the seventh century.
The distinguished writer Marina, in his historical and critical essay upon the legislation of the kingdoms of Castile and Leon, gives the following definition of the word " Fuero."
"Antiquity furnishes us with many instruments bearing the title of "fueros,'" which are nothing more than writings of donation, issued by some lord or proprietor, in favor of individuals, churches or monasteries, granting lands, estates, &c. Leaving innumerable instruments of this nature—common m Spain and in all Europe, during the eighth and ninth centuries, and as useful in illustrating the history and geography of the middle ages as they are barren respecting an ancient jurisprudance, to which they have scarcely any relation—we will speak solely of tho3e which properly deserve the name of " fueros;" those documents issued by the kings, or by the lords in virtue of the privileges pertaining to their sovereignty, in which wero contained constitutions, ordinances and laws, civil and criminal, designed to establish on a firm footing, the common rights of towns and cities, to raise them into municipalities, and to secure for them a moderate and just administration, conformed to the public constitution of the kingdom, and the circumstances of the people: documents exceedingly valuable on account of the merit of some of the laws, as for their antiquity :—many of them being anterior, by more than a century, to those municipal corporations, and chartered com. panies, so celebrated in Italy and France, and considered as the first rudiments of politics and legislation in relation to cities. Before the 12th and 13th centuries, the epoch of these charters in those foreign kingdoms, we had in the kingdoms of Leon and -Castile, those more wise and equitable, and which combined the advantages of true civil liberty, with due subordination to the sovereign and his laws."
The author of this code is in doubt, it being attributed by different writers to three of the kings of that period, and by some regarded as the joint work of ail.
This code has doubtless many and notable defects, if viewed with the light of the present age, but in spite of its faults, no one can deny that, considering the period in which it was promulgated, it was a most remarkable production.
It consists of an introduction, containing 18 laws, and 12 books, divided into 54 titles, and containing 559 laws.
Escriche cites the celebrated Marina as saying, in relation to it, that "it is admirable for method and clearness; its style grave and correct, its Latin sufficiently pure; most of the laws are marked by prudence and wisdom; in fine, as a body of law infinitely superior to all those which to that time had been published in the new political associations of Europe; a body of law which forms a complete vindication of the Gothic kings of Spain, and of the philosophical spirit of the Spanish clergy, who had so important a part in its formation; a body of law which will always be a monument of glory to our country, and an undeniable proof that our fathers were farthest advanced in the career of civilization."
Foreign authors of the highest distinction have regarded this code in a similar light. Among these is Gibbon, in his famous historical work, and Guizot, in his general history of the civilization of Europe, from the fall of the Roman Empire to the French Revolution; and other German, French, and Italian writers, of equal note.
In relation to the authority of this venerable code, it is important to observe that it has never, as a whole been repealed. As recently as the 15th July, 1788 a question arose before the Court of Chancery of Grenada, in relation to the succession to property of a deceased person. According to Law 12. tit. 2., lib. 4. of the Fuero Juzgo the relatives of the deceased person are entitled to the property; and according to the Partidas a convert was entitled to the estate. The matter was referred by the Court to the king, Charles III. who, after consultation with his council decided that the said law of the Fuero Juzgo did not appear to have been repealed] by any other, and ought to constitute the rule of decision in this and other similar matters without such adherence as had been shown to the Partida, founded only on the provisions of the civil law of the Romans and on the common canon law. (Escriche Die. de Leg. Fuero Juzgo.)
Another important code, is the " Fuero Viejo de Castilla."—This code received that title in the year 1356, but it is generally stated by Spanish writers that it had its origin between the years 995 and 1000, and that Don Sancho the Sovereign of Castile was its author—that it was also called " Fuero Viejo de Burgos," " Fuero de los Fijosdalgos," &c. The learned father Burriel gave this as the results of his investigations, and was followed by subsequent writers, especially by Doctors Asso and Manuel in more than one of their works; but it is now considered by the best authority tbat the celebrated Marina in his Historico-Critical Essay has demonstrated that Sancho was the author of no code of general and fundamental laws for CastileIt is not important as to tho precise origin of this code. It is agreed that from time to time it received various additions under various names, and when in 1356 it received the title of " Fuero Viejo de Castilla," it had been enriched by contributions from the "Fuero dc Burgos," that of Najera, LogroSo and others less celebrated.
Doctors Asso and Manuel in their preliminary discourse to the edition of this code, published at Madrid, 1761, (pp. 43. 44.,) say: "The laws of the Fuero CasteUano have been observed constantly from the time of Don Sancho the author of them, to the present time; not only because it was commanded by many decrees and royal edicts, but because no one could mention a period when they were not in force."
Although this is not denied, it appears that aside from those which have become incorporated in other laws and are embraced in the Novisima RecopUaeion and those which are obsolete, the number of laws having any application to the existing state of things, is very small.
The " Fuero Real" was not published until the years 1254 or 1255.— The author of this celebrated code was Alphonso the Wise. To remedy the evils arising from various uncertain and conflicting laws, decrees and grants proceeding from various sources of real or pretended authority, and in order as he says in the preface, to abolish a multitude of unjust laws, this code was adopted. It has been said also, that this Fuero was considered only as a preliminary step towards the great legislative reform which this wise Monarch meditated by the publication of the famous Partidas, thus preparing the way by a gradual removal of the existing fueros, local grants and conflicting decrees for a more complete change.
This code is remarkable for its clearness, method, and conciseness. It comprehended the most important of the municipal fueros and conformed to the Customs of Castile and the Fuero Juzgo, a large portion of which is copied word for word.
In relation to the authority of this code, Don Alphonso XI. in the " Ordenamiento" made by the Cortes of Alcaic of 1348, ordered by Law 1 Tit. 28, that the laws of the Fuero Real and the municipal fueros of each pueblo should bo preferred to the Siete Partidas in the decision of civil and criminal cases so far as they were not obsolete nor contrary to said ordenamiento. This provision is inserted and continued in the laws of Toro and the collection of laws subsequently made, and finally in the Novisima Recopilacion, where it forms Law 3. tit. 2. of Book 3.
Escricho in his dictionary adds the following: "Don Juan Sala in the brief history of the law contained in his Institute says, that since the royal cedula of the 15th July, 1788 above referred to, it is not necessary to prove the laws of the Fuero Real to be in force in order to claim the application of them in any case; but it is sufficient that they have not been repealed by other subsequent acts or by a contrary usage."—Reference is not here had to the many laws which are included in the Novisima Recopilacion, since they would possess the same authority with the Novisima of which they form a part.
The Fuero Real was speedily followed by " Las leyes del Estilo" in order to render clear some points iu the text of the Fuero which were of doubtful meaning. At Madrid, and in some other parts of the kingdom, this code went into immediate forco; but it was not until after the death of the king that it become universally adopted throughout the kingdom.
It is scarcely necessary to refer to the numerous Fueros of a less general and public character.—The Fuero de Leon, of the year 1020—De Najera, of 1076—of Logrofio, 1093—That of Sepulveda of 1076, shews most distinctly the peculiar civilization which arose out of the war of the re-conquest. It also diminished the theocratic spirit of the Gothic monarchy by showing to the Castilians in the municipal power, a new germ of government, a social element until then unknown, a power which produced in the course of time, the reform of the codes, which corrected the abuse of the royal authority by converting it into that of protector and guardian, and which created afterwards a representative in the Cortes of the popular class.
We next come to that most remarkable body of law the Siete Partidas, so called because the work is divided into seven parts. This code is similar to the Roman Pandects and appears to have been formed from the usages and ancient customs of Spain—the Roman laws—various decisions of the canon law—the writings of the fathers and quotations from various sages and philosophers. It was commenced in the year 1256 and finished in 1263, but not published until the year 1348, in the reign of Alphonso XI.
Considering the period in which it was written, this work is regarded not only by Spanish writers, but by those of other nations as one of the most remarkable legal productions that has ever been written.
The illustrious Marina speaks in the following terms of the second of the Partidas which contains tho political and military constitution of the kingdom:
"A most precious monument of history, legislation, morality and politics, and beyond dispute, the part of the whole seven which compose the code of Alphonso the Wise, the most complete, whether we consider the gravity ami eloquence with which it is written, or the excellent maxims of philosophy which are sown in every part of it, or its intimate connexion with tho ancient customs, laws and fueros, municipal and general, of Castile: from which it is principally derived.—A work eminently respectable even in these times of philosophy, and worthy of being read, meditated upon and studied, not only by jurists and statesmen, but also by literary men and tho curious, especially by our rulers, the nobility and royalty itself."
This work has been translated under the patronage of the legislature of Louisiana and at the expense of that State, by Messrs. Moreauand Carleton, counsellors at law. They speak of tho Partidas, in the preface to the translation as " the most perfect system of Spanish laws," and which "may bo advantageously compared with any code published in the most enlightened ages of the world," and that these laws are "tho unceasing sulject of the praise and admiration of every jurist acquainted with them."
They also quote a learned French writer who, speaking of the Partidas, observes:
"We find in every page of that work, the highest wisdom and tho most stern justice. It gave to the monarch under whose auspices it was executed, titles more just to the epithet of wise, bestowed upon him by his contemporaries, than his astronomical researches and physical knowledge, however surprising the one and the other may have been considered, in an age when all studies were so much disregarded. It is in that precious code that we must seek the early treasures of the Spanish language," &c.
But although such is the character of the Partidas, as a profound philosophical and literary work it is deserving of most, if not all the praise bestowed upon this famous body of law, its authority in the decision of causes in the courts of Spain is far less high. Instead of the first, it has a much lower place.
The laws of the Recopilacion and those subsequently passed, are of highest authority, and in the absence of these, those of the Fuero Real and of the Municipal Fueros, so far as they are not obsolete, and lastly those of the Siete Partidas.
The Ordenamiento de Alcala, published in the year 1348, contains 32 chap