Page:The New International Encyclopædia 1st ed. v. 18.djvu/468

* SPANISH LAW. 404 SPANISH LAW. SPANISH LAW. The most widely extended brantli of the civil law (q.v.). Even if Portu- guese law, which is an offshoot of mediaeval Span- ish law, be left out of the reckoning, Spanish law prevails to-day over a wider area and gov- erns a larger population than anj' other system except the English. Spanish law, in its Cas- tilian form, was introduced into all the Spanish colonies. In Mexico, in Central America, and in all of the South American States, ex- cept Brazil (which is governed by Portuguese law), the law of Castile still forms the historical basis of the legal order. Jlodern Spanish law, as codified in the later decades of the nineteenth century, obtains in Cuba, in Porto Rico, and in the Philippines. History. (1) Pre-Roman and Roman Periods. — in mediaeval Spanish law, some legal historians find traces of Iberian, Celtic, and Phoenician cus- toms ; but for all practical purposes the history of Spanish law ' begins with the conquest and civilization of the peninsula by the Romans. Until the fifth century of the Chris- tian Era the rule of the Roman law was as com- plete in Spain as in any other prSvince of the Roman Empire. The laws of Jlalaga and Sal- pensa, preserved in inscriptions dating from A.D. 82 or 83, are among the most valuable sources of our knowledge of Roman municipal law. (2) Tisigothic Period. — A new and important element was introduced in the fifth century by the German conquest of the peninsula. In the Visigothic kingdom, which existed until 711, the conquered Roman population retained, for nearly two centuries, their own law in mat- ters that concerned themselves only. A special compilation of Roman law, the so-called Breviary of Alaric (q.v.), was drawn up for their use, a.d. 506. From the name of the royal official who attested the copies of this compilation, it is generally described in Spanish legal literature as the Breviary of Ani- anus. The Visigothic conquerors, however, lived by their own customs and laws ; and to these, in case of conflict, the Roman law gave way. Their law also was put in written form. The so- called Lex Antiqua Visigothorum (palimpsest in the Biblioth6que Nationale. Paris) is ascribed by some authorities to King Eurie (a.d. 466- c. 485), by others to King Leovigild or to King Eeccared, a century later. The written law of the Visigoths was developed from reign to reign, with an increasing infusion of Roman law, civil and ecclesiastical. The assemblies which ap- proved these laws were practically Church coun- cils; they consisted wholly or chiefly of prelates. About the middle of the seventh century the Breviary of Alaric was deprived of legal author- ity, and the Romanized Lex Visigothorum became the general law of the peninsula. The form in which this code has come down to us is practi- cally that which it received in the reign of King Eec'cessuinth (649-672). In the eighth and fol- lowing centuries the Visigothic code was frequent- ly described as the Liber Judicum, or Forum Judicum. or (in the vernacular) Fuero Juzgo. To the Visigothic period belongs a Spanish col- lection of council decrees and Papal decretals, the so-called Hispana. which was much used in Western Europe and became one of the most im- portant sources of the canon law (q.v.). (3) Mediaeval Period. — The Moorish conquest and occupation of the peninsula (a.d. 711-1492) left few permanent traces upon Spanish law. The Christians who lived under Mohammedan rule retained not only their religion, but, in matters concerning themselves alone, their laws also. This was the case even with the so-called 'Mozarabs' who accepted the speech of the conquerors, as is shown by the existence of an Arabic translation of the Hispana and by Arabic notes on the Visi- gothic code. As the peninsula was gradually re- conquered and the Oiristian States of Northern Spain, the Moors who remained enjoyed similar privileges; but the general expulsion of the •Moriscos' (a.d. 1609-14) left Catholic Chris- tianity and Gothic-Roman law in complete do- minion. In Cliristian Spain, however, as in other parts of Europe, the development of the law dur- ing the Middle Ages was particularistic. The Visigothic code remained, in theory, applicable, but its rules were su])ersedcd b_v local, provincial, and class customs and laws (fueros, q.v.). The Spanish cities obtained charters of self- government (cartas pueblas) and developed independent city laws earlier than in the cities in the rest of Europe. The earliest town law that has come down to us is that of Leon (1020). At the close of the four- teenth century there was scarcely a town of any consequence that had not its own fuero. In the o])en country, the tenants and serfs of the Crown, of the Church, and of the nobles lived by differ- ent manorial customs. The earliest fueros of provinces or kingdoms represented the legal cus- toms of the nobles; one of the most interesting of these is the Fuero Viejo of Castile (1212). In the thirteenth century attempts were first made to combine the general rules of provincial and town law in 'general fueros' of the various king- doms, issued by the kings with the approval of the estates. Such were the Fuero Real (1255) and the Ordenamiento de Alcala (1348) in Cas- tile; the Fuero de Huesca (1247) and the Ob- servancias (1437) in Ar.agon; and the Fueros Generales of Navarre (1237) and of Valencia (1239). The revival of the study of the law- books of Justinian in the twelfth and follow- ing centuries resulted in Spain, as elsewhere, in more or less 'reception' of Roman Imperial law. (See Civil Law.) In Catalonia, in Valencia, and in Navarre the law-books of .Justinian, as inter- preted by the Italian commentators and taught in the Italian and Spanish universities, were re- ceived as subsidiary 'common law.' In Aragon and in Castile they were not so received, in bulk; but in Aragon the new jurisprudence influenced legislation, and in Castile it produced an essen- tially Roman code, the celebrated Siete Partidas. In its first form (so-called Speculo or Setenario) this code dates from c.1260, but it did not obtain legal force until 1348. It was to be applied only when the general laws of Castile and the special fueros still in force furnished no rule; but in practice, through the influence exercised upon the courts by the doctrines of the universities, the Partidas to some extent supplanted the pure- ly Spanish sources. (4) Modern Period. — The union of Castile and Aragon ( 1479). the conquest of Granada (1492), and the annexation of Navarre (1512) estab- lished the modern Kingdom of Spain. In the new Spain, however, the provinces that had been