Rome, but in their zeal for conversion of the kingdom the priests invaded homes and assumed every function in the state. The king became practically their servant and in their councils all legislation was passed. Spain owed her unity to the church, and has repaid the debt by her devotion.

Ervigius and Egica added some laws, especially against the Jews, as did Wamba; but the Book of Judges, Fuero Juzgo, was substantially as Recesvintus and his father Chindasvintus left it.12

No doubt much, perhaps most, of this legislation was due to the bishops in these councils, for they were the learned class and exercised great influence. This is indicated in many ways. The laws are often based on the Mosaic dispensation, as in the frequent instances of lex talionis, and, while the clergy is often subjected to the law, the punishment is much lighter than for laymen, and the bishop is given a kind of supervision or visitation of courts and judges.

While these councils of Toledo were not representative in the modern sense, they were national and marked the rise of peninsular interests. As the Gothic lands across the Pyrenees fell away, the councils built up a Spanish patriotism.

The preambles to the laws express high aims and often show great wisdom. That law is the mistress of life,13 that it is designed to repress evil, that it must be amended from time to time to meet new evils, are among its maxims and might well be taken from a modern law book. Indeed the preliminary title of the Fuero, decreed in the eighth council of Toledo, declares to the king that he will be king only so long as he does right. The equality of men before the law is expressly declared." Christianity was inculcated and Jews punished severely.15

God is declared to be justice,16 an expression which would seem to be worthy of St. Augustine. The happiness of the state therefore is the practice of the precepts of law.17 The family is upheld, even to the extent of requiring the wife to be the younger,18 and

unlike the Roman Law the father could not sell his son.19 Responsibility attaches only to the actual criminal,20 and the attainder of the English Common Law was unknown. The punishments declared are severe, even barbarous, being generally scourging and extending to cutting off a hand, putting out an eye, and also to execution; but on the other hand the judge is instructed to be moderate in his punishments. A favorite remedy is making the offender the slave of the man he has wronged. Trade was encouraged with foreigners, who must be well treated by the judges.21 The Roman Law nevertheless greatly influenced the Fuero Juzgo. There, as in all other Spanish codes, the Law of Obligations, embracing contracts and torts, is largely adopted from the Civil Law. Sale, lease, and contracts in all their forms appear and go back of the times of the fighting, nomadic Goth.

23

Family relations, however, remained Germanic. Thus there could be no marriage without dowry by the husband,22 and there could be no gift between husband and wife until after a year. These principles were contained in the local fueros, and we find them in the life of the Cid and others, the difference being that later there was no limit to the amount of the dowry. But it was not until the Partidas that, adopting the Roman customs, the husband acquired power over the dowry.24

The chronicle of the Cid shows curious facility of remarriage. When unworthy sons-in-law abused and deserted his daughters, the Campeador's friends overcame the men in the lists before the king and Cortes, and the two deserted wives were without court divorce given in marriage to royal princes of other houses.25

A striking feature of Spanish law is the conjugal partnership, the joint ownership or community by husband and wife of property acquired during marriage. This is not Roman, and comes into view first in a law of Recesvintus to be found in the Fuero Juzgo,

19 Law VII, tit. III, Liber VI; Law XII, tit. IV, Liber V.

20 Law VII, tit. I, Liber VI.

21 Law VII, tit. I, Liber I.

Law I, tit. I, Liber III.

23 Law VI, tit. I, Liber III.

24 Part. IV, tit. II, Law XVIII, etc.

26 FUERO JUZGo requires divorce, Law I, tit. VI, Liber III.

26

26 Law XVI, tit. II, Liber IV. Its history is traced by 9 MANRESA, COMENTARIOS,

2 ed., 542 et seq., commenting on CIVIL CODE, Art. 1392, etc.

which preserved the individual ownerships in property acquired before marriage. The custom was recognized by many local fueros when they came into existence.27 The Partidas does not mention it, but hardly intended to abolish it,28 and it has been the practice at least ever since the laws of Toro and of Ferdinand and Isabella. In all early law personal relations or status occupy the first place, and they have retained it in Spain. Slavery in ancient times was personal, but was being ameliorated in the Fuero Juzgo, for masters were held accountable for cruelty.29 Later in the Middle Ages slavery became serfdom, the people annexed to the soil;30 but the feudal system came slowly in Spain and fiefs were rare in Castile until the fourteenth and fifteenth centuries,31 when they were in the rest of Europe beginning to give way to modern tenures. Chivalry en gross, so to speak, however, extends almost from Bernado del Carpio at Roncesvalles until - Don Quixote de la Mancha! Commendation or submission of freemen to a lord became not uncommon, but such benefactoria are not known in the Fuero Juzgo. There we find slaves and freedmen with duties to their patrons similar to those of the Roman libertini, and land seems to be held in absolute ownership, with measures both Roman and Gothic.

When we pass from status to contract the Fuero Juzgo finds the Roman Law ready to hand and adopts not only its principles but often its terms and language. This has also been the case with the later codifications, and the Partidas, for instance, is arranged on the model of the Digest of Justinian. By the time of Philip V, grandson of Louis XIV, Spanish law was regarded as incidental to the Roman Law.32 While the beauty and value of the old Roman Law has always caused it to be influential, it was never received in the sense that it was in France and Germany, and strictly speaking it is not the Common Law of Spain.33 The Barcelona Cortes in 1251 petitioned King Jayme I to forbid the use of Roman Law in the courts. The term Common Law is not unknown, but it is

82 E. Stocquart, 4 REV. DE DROIT INT. (2o Série), 556 (1902).

" Asso, INSTITUTES OF CIVIL LAW OF SPAIN, XX, etc.

4 E. Stocquart, 4 REV. DE DROIT INT. (2o Série), 555 (1902).

used more in a theoretical than a practical sense, as being those principles common to the whole country or to the world, much as the jus naturae of the Stoics.35 Some of this was in the Roman Law, but some of it was in the local customs not written but of long use, as they are described in the Partidas.36 These kept alive much of the Germanic law of old, just as the Coûtumes, particularly of Paris, were doing across the Pyrenees.

MOHAMMEDAN INFLUENCES

The main sources of Spanish law therefore up to this time were the Roman Law and Germanic custom, combined at least for the land in the Fuero Juzgo or Liber Judicum.

But a third source of legal institutions, almost unnoticed heretofore,37 must be found in the Arabs, whose invasion in 711 and rapid conquest constitute a romantic and far-reaching element of Spanish history. At first they threatened to cross the continent and joining hands with brethren from Damascus ingulf Europe in Mohammedanism. This was only prevented by Charles Martel's victory, the crowning mercy of Tours, in 732. The Arabs were thrown back southward to develop a Moslem empire in the Spanish peninsula over against the Christian survivors, looking on powerlessly from the mountains and coasts of the north. There came to be a Moslem Spain, centering at Cordova, as previously there had been a Gothic Spain centering at Toledo.

By 756 the Arabs or Moors had made of Spain the khalifate of Cordova, to be not only independent of Damascus and Babylon, but the focus of one of the great civilizations of the world. From a country mainly of hunters and shepherds, as shown by the Fuero Juzgo, the peninsula, particularly in what was to be called Andalus, became the seat of agriculture, manufactures, and learning. Abderrahman I and III and Almansor ruled the whole peninsula except the districts between the mountains and the Bay of Biscay in which the ancient inhabitants remained and which came to be the kingdoms of Galicia, Leon, Castile, Navarre, and Aragon about the

35 ESCRICHE, DICCIONARIO RAZONADO, s. v. Derecho Comun.

36 Part. I, tit. II, Law IV.

37 Legal histories, such as that of Modesto Falcon, omit the Moorish domination as a source of law. Escriche denies its influence, although many of his pages contradict his statement.

Ebro. While the Arabs, like the Goths before them, left the old law to the conquered, they introduced and developed Mohammedan institutions to an extent which left lasting traces.

38

Mohammedan law is founded upon the Koran, the decisions of the prophet, the traditions of his immediate successors, and ultimately on the agreement of the faithful and analogy in new cases. The state and church were never separated, the executive and the courts were in the same hands even more definitely than with the Gothic councils of Toledo. Different elements appealed to different teachers and there came to be four different schools, of which the more rationalist, founded by Malec, prevailed in North Africa. It was made dominant in Spain by the great teacher Abu Mohammed Yahya and was maintained by Abenhabib, called the wisest of Andalusia, and by Isa of Toledo, named the first of jurisconsults.3 Law absorbed the study of many families of jurists, as in Seville, Cordova, Valencia, Murcia, Malaga, and Granada; nor was the Malekite doctrine without dissent. The family of Benimajlad founded a school which they maintained for four centuries. Their most distinguished man was Abu Abderrahman Baqui, 817-889, who had 248 teachers and traveled in many lands before settling in Cordova to give a more religious tone to law. He wrote a commentary on the Koran, but should be more famous for his book "El Mosnad," a collection of traditions in the form of a dictionary which cited decisions and 1300 authors.39 All hail to the author of the first law dictionary, especially as his rivals sought his death until the Emir Mohammed bought a copy of his book and ordered him to keep on teaching!

The classical author of the Malekite school was Sidi Khalil, who flourished in the fourteenth century and whose system still obtains in Algeria and has been frequently published and commented on in modern times. As given by Zeys,40 it covers, first, Marriage and its dissolution; then Procedure, including something analogous to Injunctions (Interdiction); and third, Contracts, including Partnership. It is perhaps less indebted to the Roman Law than the system of Hanefi, which is predominant in the rest of the present Mohammedan world.

38 UREÑA, HOMENAJE A CODERA, 256.

39 Ibid., 257-58.

40 TRAITÉ ÉLEMENTAIRE. Published at Algiers in 1885-86.