tice. The first step in procedure in many cases to this day even under the new codes is the proceeding known as Conciliation, an informal adjustment, where possible, of the dispute before it reaches the formal stages of proof.47 This custom prevails also in Denmark, but has there a different origin.

There is good reason to think that the greatest judicial official of Aragon, the Justicia, was taken from the Moslems.48 They had a similar magistrate, and the Aragonese did not have the office previously. It was this official who offered to the autocratic Philip II the greatest opposition he ever met.

Moorish influence may also be found in substantive law. To this day are applied in Valencia, Murcia, and Granada the irrigation practices of the Moors. Around the Mediterranean, from Egypt to the Pyrenees, there is fertile coast land lacking water, and through this whole region there has come to be an artificial system of irrigation.49 Egypt, the gift of the Nile, as Herodotus declares, solved the problem first, and the Arabs took to Spain the lessons they had learned there. Around Valencia they led canals to the huertas or gardens from the rivers Turia and Jucar; about Murcia others from the river Segura; and about Granada not only canals to the vegas or valleys near the Darro and Genil, but from the snows of the mountains to the palace of the Generaliffe, all at different periods beginning about 800 A. D. When Jaime I conquered Valencia for Aragon in 1238 he divided the lands and appurtenant waters among his followers according to the Moorish laws and customs, and so he did in 1275 at Murcia. The division of water at Granada is more subject to state control than elsewhere, but at Valencia the users of one canal form a junta central, who biennially elect a junta de gobierno, syndic, and atandores. These supervise irrigation on the Moorish plan not of measurement absolute but of measurement relative, an hilo or thread being a twelfth or other subdivision of the available water. The Moorish word for "ditch," acequia, still prevails, and indeed this is only one of the many terms which were once quite common and are still found in some places. The officials 46 J. RIBERA TARRAGÓ, ORÍGINES DEL JUSTICIA DE ARAGÓN, 81.

47 E. Stocquart, 4 Rev. DE DROIT INT. (2o Série), 541 (1902); REV. DE L'UNIV. DE BRUX., 1904, 479.

48 J. RIBERA TARRAGÓ, ORÍGINES DEL JUSTICIA DE ARAGÓN. The earlier holders of the office are found in REVISTA DE ARCHIVOS, 1904, 119.

49 JEAN BRUNHES, ÉTUDE DE GEOGRAPHIE HUMAINE, L'IRRIGATION, Paris, 1902.

controlling the turns of irrigation were called zabacequias, and about Zaragoza the word for "turn "itself was adula or ador, which is Arabic, as is also alfarda, the "water right."50 While the words are different, the practice in Egypt was similar. The rules were in neither country reduced to written laws and much was left to the discretion of the public officials. In case of dispute resort is had at Valencia to the Tribunal de Aguas, which sits every Thursday on a sofa at the cathedral door, and from its decision upon an informal hearing there is no appeal. The culture of rice, oranges, pears, peaches — all introduced by the Moors-is still governed by their rules.51 In Porto Rico the landowners on irrigable water form a commission or syndicate, for administrative purposes.52

The Usatges of the Moors in the eleventh century marked a higher civilization in Spain than in any other part of Europe,53 and on the surrender of Granada Ferdinand and Isabella contracted that the inhabitants should retain their laws and judges — a promise ill kept. One Moorish custom long prevailed, however, that of a kind of civil marriage in the presence of witnesses. It was called barragañas or sponsalia and the children were as legitimate as those of a church marriage. The custom was opposed by the clergy and later by the Cortes, although it became unlawful only with expulsion of the Moors.54

FUEROS

Castile, the Spanish land of forts or castles par excellence — the borderland - had already absorbed Leon when it took the lead in the long reconquest from the Moors, and so the land conquered became mainly provinces of the kingdom of Castile. Not wholly, however, for Cataluña became part of Aragon and extended that old country to the sea. But the other northern districts which had not yielded to the Moor - Galicia, Viscaya, Navarre — also became independent kingdoms with laws or fueros suited to their particular circumstances. Indeed it is true that many cities as they were conquered, beginning with Leon in 1020, were given each

50 J. RIBERA TARRAGÓ, ORÍGINES DEL JUSTICIA DE ARAGÓN, 38.

61 A correspondent of the New York Evening Post found this court in use and respected by all a few years ago.

52 Semidey v. Central Aguirre Co., 7 P. R. Fed. Rep. 185, 572 (1914). "E. Stocquart, 10 REV. DE L'UNIV. BRUX., 1905, 480.

4 Ibid., 478.

its fuero, one of the privileges of which was enforcing its law by its own selected judges.55 These customs gradually crystallized into the fueros of Galicia, Viscaya, Navarre, Mallorca, and other districts and contributed not a little to the local independence of the inhabitants of these provinces.

The Fuero Juzgo itself was given by Ferdinand III to Cordova as its local fuero when in the thirteenth century he recovered it from the Moors and as he translated it into Castilian for that purpose he incidentally established the beginning of Spanish literature also.

Political institutions became assimilated after Ferdinand of Aragon married Isabella of Castile and their descendants ruled the whole of Spain, but the fueros of the old kingdoms and present provinces remain untouched until this day. The Partidas and Recopilacion did not supersede them. In the eighties of the last century they received much study and a whole library of Legislacion Foral was printed and commented on. Such local law of wills, legitimacy, Catalonian fideicomiso, the Tribellian quarter, heirship, Aragonese right of survivor of a marriage (whether usufruct or property), and rights of contract 56 not only remained but are expressly recognized by the Civil Code.

These fueros go further than the local customs of England, such as gavelkind in Kent, for they are real codes of many civil relations and often differ materially from the Civil Code. A striking instance is in Navarre, whose fuero permits a father to dispose of his property by will as he pleases,57 while the Civil Code of Spain practically denies the right to disinherit children. The preservation of the family as an institution is one of the striking marks of the Civil Law as distinguished from the individualism of the Common Law development. In Aragon King Peter in 1283 granted to the Cortes the Great Privilege, which was a kind of Magna Charta, and they also had a remedy, called the Manifestation, which was much like the habeas corpus of the English people. While the Utsages of that country were not to become as famous as the Fuero Juzgo preserved

5 E. Stocquart, 4 Rev. de Droit Int. (2a Série), 552 (1902). A list of Aragonese towns which acquired this privilege is given in J. RIBERA TARRAGÓ, ORÍGINES DEL JusTICIA DE ARAGÓN, 82. The change to political chiefs is more marked in Castile. Ibid., 83.

in the larger kingdom of Castile, they marked a people of originality and vitality.

It would, however, take us too far afield to discuss in detail the fueros of these old kingdoms, each of which makes up a substantial volume.58 They are exceptions which are perhaps not important in the Latin-American countries, for these were settled by Castile. It may well be, however, that the many decrees and cedulas issued for the colonies and the later local legislation take the place thus left vacant by the fueros. The Leyes or Recopilacion de las Indias compiled by Charles II in 1680 is still of great value for American countries.59 The fueros are important locally rather than as sources of the Spanish Civil Law as such, for they were found a great obstacle to modern codification and had to be preserved in part." Nevertheless it is well to note that these local grants not only delayed the rise of the feudal system, but developed the law of personal rights even earlier than in England.61

60

Historically the Civil Code adopted in 1889 was in the main but the local law or fuero of the greatest province, that is to say, of Castile; for in legal as in political history we have here the process which has made Middlesex into England and the county of Paris into France. Such instances are more than a survival of the fittest they are the conquest by the fittest.

CONSULADO

There was another local law of Spain which has had general influence. It arose in Barcelona, the ancient capital of Cataluña, from the beginning until now famous for the independence of its citizens. It was an old saying that they enjoyed so many privileges that nothing was left for the king.

Barcelona was in the Middle Ages one of the great ports of the Mediterranean, as indeed it has remained, and about 1266 there was digested 62 for the Prohoms of the city the maritime customs which

58 LEGISLACION FORAL, Navarre, 1888; Galicia, 1883; Viscaya, 1888; Cataluña, 1887; Mallorca, 1888; Aragon, 1888. Each has a valuable introduction by a distinguished jurist.

59 They are, for example, quoted largely in the INSTITUCIONES OF JOSÉ MARIA ALVAREZ of Guatemala.

60 CIVIL CODE, Arts. 10, 16.

61 E. Stocquart, 10 REV. DE L'UNIV. BRUX., 470.

62 CODIGO DE LAS COSTUMBRES MARITIMAS DE BARCELONA, xxi, Madrid, 1791.

had prevailed on that sea. There had been in Roman times such laws coming from the Rhodians, of which the principal survival is one on Jettison, but doubtless the Rhodian Code has material coming down even from the Phoenicians. From the middle of the thirteenth century the Consulado del Mar takes its place alongside the Siete Partidas, performing even more thoroughly for the sea what that attempted to do for land.

The chief function of the Consulado was to declare the law of commerce by sea and to establish maritime courts under officers called consuls. From time to time other cities of Spain, from Seville to Bilbao, and the ports of other countries following suit obtained the right to such courts. From them originated consuls as now known, and every code of commerce by sea since then has its origin therein.

The law of Spain in its finished form controls the civil relations not only of the peninsula, but of Central and South American countries, of Porto Rico and the Philippines even under the American flag, and of Cuba libre also. The Spanish Civil Law is the most influential body of law on the globe to-day, and even to Americans is second only to the Common Law. Its origin is a subject of interest to more people than the origin of any other body of law after the Mosaic. It is no copy of the Code Napoléon, although that was carefully consulted. A French writer of note says that the Spanish code is the more logical. It is, no less than the English Common Law, an outgrowth of the needs of the nation that created it. Unlike the English Common Law, the Civil Law originally aimed to cover all legal relations and left nothing to judicial initiative. This accounts for its exactness and also for its formality. And yet, unlike the Roman Law, room is left in the Spanish code for growth and for expansion somewhat as at Common Law. If a case arises not expressly covered, it must be decided by natural equity, and the

The Consulado proper contains 292 chapters, distributed under fourteen titles, and the Ordenanzas for judicial procedure, first given Valencia in 1283, were 44 or 35 in number, according to their varying forms.

63 CODIGO DE LAS COSTUMBRES MARITIMAS DE BARCELONA, 317, 319. The second volume gives the laws of the Rhodians and many other maritime laws.

64 CIVIL CODE, Art. 6: . . . "When there is no law exactly applicable to the point in controversy, the customs of the place shall be observed, and, in the absence thereof, the general principles of law."