HARVARD LAW REVIEW VOL. XXX FEBRUARY, 1917 No. 4 GERMANIC AND MOORISH ELEMENTS OF THE SPANISH CIVIL LAW SPANISH law, like Spanish civilization, owes its form to Philip II. His Nueva Recopilacion was on the legal side like the Escorial on the architectural, the Inquisition on the religious, and the Armada and work of Alva on the political side - the supreme expression of the will which ruled Spain with a rod of iron. The Siete Partidas is mentioned oftener, the work of Alfonso the Wise of Castile, before there was a united Spain. Nevertheless the tendency represented by the Siete Partidas - the law in Seven Parts - culminated in Philip's Recopilacion, the first real Spanish codification of jurisprudence, because only then was there a real Spain. The Partidas, moreover, was never more than supplementary,' while Philip's code was the law until Charles IV found it needful to revise it, unchanged in principle, by his Novisima Recopilacion. This in turn did duty until the days of the Constitution of 1812 and the modern Commercial, Civil, Criminal, Civil Procedure, Criminal Procedure, Political, and Mortgage codes, which might be said to make up a Novisimas Siete Partidas or Law in Seven Parts.2 The origins of Spanish law, therefore, go back of Philip II, and back even of Alfonso El Sabio. As with Tamar, two principles struggled for precedence, and, although the Roman can be marked with a scarlet thread because it first showed itself, the Germanic or 1 E. Stocquart, 4 Rev. DE DROIT INT. (2a Série), 554 (1902). 2 A study of the early codes is in the lecture of Wm. Wirt Howe, republished in 60 ALBANY L. J. 101. His Yale studies in the Civil Law cover the civil law, mainly French, as found in Louisiana. Gothic element breaks forth like Pharez, and indeed we shall also find Moslem and particularistic influences prominent in the thousand years' gestation from the Roman Empire to the expulsion of the Moors.3 Roman Law in Spain is a subject by itself. Spain and France were thoroughly Romanized and the jus civile was as well known and obeyed at Gades (Cadiz) and Tarragona as at Rome and Naples, and the Roman cities of the two peninsulas were much alike. But it was that law as it was known before Justinian. His Digest and Code were yet to be, for Spain was severed from the empire while the law, as developed by the prætor and changed only by the early emperors, was in force. Justinian never ruled more than a part of the Mediterranean coast of Spain, nor did his legislation. Nevertheless in Hispania the prætor had already given way to the judex, and the conventus or circuits of the numerous courts, varying from time to time, brought justice home to all. In every important city was the forum, and on it was a basilica, the seat of the courts. In the late empire law was less influential, and the forum became the plaza, the basilica became the church; but even there prevailed a Roman ritual and a Canon Law taken from the civil, and still later the Latin language and the Civil Law attracted and charmed rude barbarians from the north, whether named Alans, Suevi, Vandals, or Goths. Roman principles and forms survived Roman political rule. The reverence for documents and documentary evidence, for the notary who makes the protocol, the love of form which equalizes the two species of property known in other lands as realty and personalty, and almost ignores heirs and fraud until a court has de 3 The approximate dates and number of articles of the principal codes are as follows: A. D. 466-485, Code of Euric; 506, Breviarium Aniani; 687-700, Fuero Juzgo, 578 laws; 1212, Fuero Viejo, 229 laws; 1255, Fuero Real, 545 laws; 1258, Especulo, 675 laws; 1263, Siete Partidas, 2479 laws; 1300, Leyes de Estilo, 252 laws; 1348, Ordenamiento de Alcala, 125 laws; 1490, Ordenamiento Real, 1133 laws; 1502, Laws of Toro, 83 laws; 1567, Nueva Recopilacion, 3391 laws; 1680, Recopilacion de Indias, 6474 laws; 1745, Autos Acordados, 1134 laws; 1805, Novisima Recopilacion, 4020 laws; 1829, Codigo de Comercio, 1219 articles; 1855, Ley de Enjuiciamento Civil, 1415 articles; 1870, Criminal Code (extended to Porto Rico in 1879), 626 articles; 1881, Civil Procedure (P. R. 1885), 2182 articles; 1882, Criminal Procedure (P. R. 1889), 998 articles; 1885, Commercial Code (P. R. 1886), 955 articles; 1889, Civil Code (P. R. 1889), 1976 articles; 1893, Mortgage Law (P. R. 1893), 413 articles. Those prior to 1847 are found in the excellent quarto edition beginning with that date published at Madrid, each with valuable introductions and notes. clared them such, go back to a Roman source; but what has been called a spiritual or Germanic principle also appears in the Civil Code, for a contract binds the parties if its essence agreement - exists even though the form prescribed by law be lacking. In the province of torts the Roman principle that a man is responsible only for what he does himself 5 still prevails and respondeat superior is unknown beyond a few instances fixed by modern legislation." The first great modification of Roman Law came from the Germanic conquerors of the country and particularly the Visigoths or West Goths; for Hallam is right in saying that they were to Spanish history what the Anglo-Saxons were to English. Visigoths overran the empire from east to west, and about 412 established their capital at Tolosa (Toulouse). The conquerors, fewer in number than the provincials, left the conquered under the old complex rules of civil relations, while they took two thirds of the land for themselves and retained the freer social organization and customs described in Tacitus' "Germania." King Euric about 475 compiled the German customs for his Visigothic comrades, and his successor, Alaric II, hardly a quarter of a century later drew up a Digest or Breviarium for his Roman subjects, largely made up of the Institutes of Gaius and the edicts of Theodosius. These were valid for the respective races from the Atlantic to the Garonne, for Spain as we know it had not yet a local name or national feeling. The formulas of court procedure in ancient Rome had been the means by which the prætors worked their legal revolution, and the closing of the Common Law forms was to be the occasion for the development of the equity jurisdiction of the English chancellor. Indeed in all ages procedure was to be the means by which substantive law came to be. So that it is perhaps not surprising that the eighty-six formulas of procedure and instruments found in the Codex Ovetensis of Madrid' give us the links between the different systems for the Romans and the Goths and a uniform code for all people in the country. Among them those for testaments, sales, 4 8 MANRESA, COMENTARIOS, 2 ed., 690, on articles 1278-79. SOHM, INST. ROMAN LAW, 233, § 45. • CIVIL CODE, Art. 1902-03 (PORTO RICO CIVIL CODE, Sec. 1803-04). Thus the owner of a private automobile in Porto Rico is not generally liable for acts of the chauffeur unless he is personally in control. Vélez v. Llavina, 18 P. R. 634 (1912); Avila v. Fantauzzi, 7 P. R. Fed. Rep. 4 (1913). 7 Published at Paris, 1854. gifts, and court procedure are based on Roman Law and are for Romans, and the Lex Aquilia and Lex Papia Poppaea are freely cited as authorities. On the other hand the dowry or purchase money given by the husband is Gothic and supersedes the civil law gift by the father to the bride. The Roman rule forbidding a freeman to sell himself is abolished, and the Gothic rule prevails against alienation of property in litigation.3 The coexistence of the two systems was inevitable at first, but the admirable Roman roads, particularly in the west and in the province along the Baetis, now the Guadalquivir, facilitated communication. Old customs and the new trading population, descended from the fifty thousand Jews whom Trajan had transplanted to the peninsula, gradually broke down the barriers between the races. In course of time, therefore, the Goths and the Romans became assimilated somewhat as the Normans and Saxons were to be much later in England, and the Gothic kings came to legislate as for one people. Leovigild and Recaredo were perhaps the first to reform Euric's laws on Roman models, and Chindasvintus became the Visigothic Justinian. He was the originator of much of the work which his son Recesvintus presented to the eighth council of Toledo for adoption as the Liber Judicum or Fuero Juzgo. While the Fuero as we have it is a more or less consistent book, there is no difficulty by a kind of higher criticism in detecting the elements and their growth at the several councils from the time of Leovigild, who first occupied Toledo and established civilization on a firm basis. Recaredo, his successor, assumed the imperial title Flavius and began the legislation of the Goths,10 which culminated in the law of Chindasvintus forbidding the use of the Roman or any other law book than the Fuero Juzgo.11 Originally the Visigoths were Arians, and like other Arians tolerant, but, when Recaredo and his officials with him embraced Catholicism in 589 at the third council of Toledo, the new faith proved itself thoroughgoing. The country still remained all but independent of I F. CARDENAS, ESTUDIOS JURIDICOS, XXXIX et seq. An edition of his LIBER JUDICUM in English was published by S. P. Scott at Boston in 1910. 10 I F. CARDENAS, ESTUDIOS JURIDICOS, 70 et seq. " Law VIII, tit. I, Liber II. 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.14 Christianity was inculcated and Jews punished severely." 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 12 1 F. CARDENAS, ESTUDIOS JURIDICOS, 134, XIV. 13 Law II, tit. II, Liber I. 14 Law II, tit. I, Liber II. 15 Laws II and IV, tit. II, Liber XII. 16 Law II, tit. II, Liber I. 17 Law IX, tit. I, Liber I. 18 Law V, tit. I, Liber III. |