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should be 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.
Escriche 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 cédula 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Real to be in force in order to claim the application of them in any case; but it is sufficient that they have not been repealed by other subsequent acts or by a contrary usage."-Reference is not here had to the many laws which are included in the Novisima Recopilacion, since they would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 in 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 force ; 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 Najerá, of 1076—of Logroño, 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 the 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 and 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 the 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 the 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. Moreau and Carleton, counsellors at law. They speak of the Partidas, in the preface to the trans. lation as the most perfect system of Spanish laws,” and which may be advantageously compared with any code published in the most enlightened ages of the world,” and that these laws are “ the unceasing subject 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 the 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 sarprising 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 Alcalá, published in the year 1348, contains 32 chap
ters, and in all 124 laws. It may be called a supplement to the Partidas, and supplies some omissions and defects in the Partidas.-Almost all the laws of the Ordenamiento have been embodied in the Recopilacion, either entire or with some slight alteration. In 1774, an edition of this work was published at Madrid by Asso and Manuel, illustrated by notes.
The “ Ordenamiento Real” was published during the reign of Ferdinand and Isabella, and is an alphabetical compilation of the various laws, whether scattered or contained in the Fuero Real-the laws of Estilo and Ordenamiento de Alcalá divided into eight books, compiled by Alonzo Montalvo, who has added a commentary and index.
This is confessedly a work of great merit and philosophical value ; but some of the most learned of the Spanish jurists are directly at issue on the question of the public authority of the work. Doctors Asso and Manuel, and learned father Burriel, insist tenaciously that the Ordenamiento Real was never sanctioned by the king and never had any authority beyond that of the private work by a learned author, and critics and authors equally learned and distinguished, maintain that it was written by the express orders of Ferdinand and Isabella, and consequently has all the authority of the other codes.
The better opinion seems to be, that as the work does not bear on its face any mark or evidence of the royal sanction, it is to be considered as of private authority, and that the laws included in it have no addition force by being embraced in the collection.
The Leyes de Toro consist of 83 laws which were prepared and arranged under the auspices of Ferdinand and Isabella, in the Cortes of Toledo in the year 1502, but were not proclaimed until during the reign of Joana, at a session of the Cortes in the city of Toro, in the year 1505. These laws do not form a complete code, arranged and methodised, like the codes to which we have referred. Their object was to supply the omissions and cor. rect the errors of the previous codes. They are, without dispute, one of the best and most important collections of Spanish Jurisprudence.
These laws, so far as they are in force, aré embodied in the Novisima Recopilacion, where they are arranged under the appropriate titles.
To these various codes and collections of laws in the year 1537 followed the Nueva Recopilacion, or new compilation. This consisted of two volumes, including nine books, and containing the existing laws. In the subsequent editions, issued in the years 1581, 1592, 1598, 1640, 1723 and 1745, were added the numerous laws wbich were enacted in the periods between
the several editions ; and in that of 1745 there is added a third volume, in which, under the title of Autos Acordados del Consejo, are included more than five hundred pragmaticas, cédulas, decrees, orders, declarations and resolutions of the Crown, issued prior to that year, which are distributed in the same order into titles and books, as in the two volumes of the collection of the laws.
Three editions were issued in the years 1772, 1775, and 1777, with the addition of the laws passed prior to the latter period. Although this Recopilacion contained the laws which were promulgated subsequent to the issuing of the Partidas and the Fuero Real, and many that were in previous codes; for example, some from the Fuero Juzgo, and of the laws of Estilo, and almost the whole in the Ordenamiento de Alcalá, and the famous 83 laws of Toro ; those not inserted were not necessarily thereby repealed, as we have seen above.
Finally there was published another edition of the same Recopilacion, but · with an entirely new order and arrangement, in the year 1805, selecting the
laws in force contained in the former edition, and adding more than two thousand distinct provisions, not contained in the edition of 1745. This was entitled Novisima Recopilacion de las leges de Espana, and under this title was approved and ordered to be obeyed by Charles IV., by a royal cédula, of the 15th July, 1805.
This work constitutes now the great body of the Spanish law, and is of the highest authority in all departments of the government, and in the adjudication of the Courts, except in those cases where any part has been repealed by subsequent laws, or where there exists a special code of laws, ap. propriate to a particular subject, or to a particular province, that has not been repealed by it."
But although this is so admirably arranged, and so full a body of law, it does not repeal all previous laws, and although the highest, and in all cases where its provisions are clear, and unrepealed by subsequent laws, an absolute authority, yet in those cases where the Recopilacion and subsequent laws furnish no rule of decision, reference may be had as authority to the Fuero Real, or Fuero de las Leyes, and, so far as they are not obsolete, to the Fueros Municipales, and when these furnish no rule, to the Partidas.
The 18th title of the ninth book of the Novisima Recopilacion, includes the laws in relation to mines of gold, silver, and other metals.” These are six in number, and although some parts of them do not relate directly to the
subject of the present volume, it has been deemed important to give all these entire, as they are not very voluminous, and it being more satisfactory to the reader than any abridgement could possibly be. For the translation of the 4th law, he has mainly adopted that furnished by Mr. Heathfield, in his excellent translation of Gamboa's mining ordinances, that law being almost precisely the same as the 9th law, Tit. 13, Book 6, of the Nueva Recopilacion, which forms the text of Gamboa's work.
The compiier has thus given a brief, but he hopes a correct account of the different codes and collections of Spanish law, which are of general application, and the degree of authority belonging to them respectively in the Spanish tribunals. It now remains that he should give some account of the systems of laws peculiarly applicable to the Spanish American provinces, and especially to Mexico, and of the Spanish and Mexican law, in force in California and New Mexico, at the time of the cession to the United States.
The “ Recopilacion de leyes de los reynos de las Indias," was first published in the year 1661. Spain, possessing immense dominions in North and South America, felt the necessity of regulating the government of those provinces, and of securing by general and permanent laws, the obedience and welfare of the nations who inhabited them. The scattered laws therefore which had been promulgated for that purpose at different periods, were collected and digested by order of Philip IV. in the same form as the Recopilacion of Castile.(a)
Murillo, an able Spanish law writer, in his treatise entitled Cursus Juris Canonici Hispani et Indici, speaks of the manner in which the Spanish laws ought to be received in both Indies. On that subject he says, that in the Spanish dominion in the Indies, courts of justice should first have recourse to the royal and special edicts which may have been directed to the chancery of the city or place where the cause is pending; and if there are none, they should then decide according to the common law, which is to be found in the laws of the Recopilacion of the Indies; and when these last are silent, recourse must be had to the Recopilacion of Castile, (Nueva Recopilacion) and the Partidas. This author also observes, that the rescripts or royal ordi. pances are of no authority in the Indies, unless they have been directed to the supreme council of those countries. (6)
The same course has been pursued in the translation of all the laws relating to the subject in the several titles in the Recopilacion of the laws of the Indies, as in the case of the Novisima Recopilacion, and for the same reason. (a) Ist Moreau & Carleton, Partidas p. xv.
(b) Idem, p. xxii.