combats; the prohibition of the use of armed force by individuals; of vassals attached to the soil; of the inhabitants of free towns and their laws; and concludes with a title of the penalties inflicted on the powerful (Los Poderosos) who vexed or oppressed their vassals in towns by unjustly seizing their provisions from them. In the second book, were included the penal laws against various classes of crimes. In the third, titles directing the formalities which parties should observe who present their plaints in justice; of the various kinds of proofs and sentences; and this book concludes with titles which treat of debts and suretyship. In the fourth are given the laws which govern contracts; the manner of acquiring the dominion of things; of public works, and the construction of mills. In the fifth and last are found dispositions relative to the portion settled by the husband on his wife, ("Las Arras,") inheritances, partition of lands which were given to rent; and it concludes with the titles appertaining to tutors, disinheritances, legitimate and illegitimate children, with an appendix to the whole.

In this work, say the modern Spanish writers, were found the same defects as in the "Fuero Juzgo."-There is the same want of good and wholesome regulations for the protection of agriculture, arts and commerce: and the various titles which speak of judicial combats, the use of armed force by private. individuals, with various regulations of a similar nature, plainly show, that the king at this period had not sufficient power to curb the haughty and licentious nobles, and restrain their actions within limits compatible with private security and public order.

A knowledge, however, of this code is even now considered as highly necessary in that country to those who aspire to the exalted ranks of their profession; it being regarded as eminently useful to the perfect understanding of many modern laws which treat of vassalage-the dominion of things considered as appendages to landed estate-the prerogatives of nobles, grandees, &c.

However justly this code of laws, as well as that of the "Fuero Juzgo," may be entitled to the censure of the Spanish writers of the present day, and although provisions compatible with such a state of society as then existed would be found

totally inconsistent with the well being of any of the kingdoms of modern Europe, yet it may be questioned if any other of the nations at present existing in that portion of the globe can boast of codes of equal antiquity and value; and from the date of the promulgation of them it would appear that while England and the other nations of Europe were yet in the darkest stages of confusion and ignorance, Spain, by reducing her laws to a permanent form, was making no inconsiderable progress toward civilization.

Between the date of the promulgation of the Fuero Viejo in the year 992,and the year 1255, at which period was promulgated the "Fuero Real," two circumstances occured which occasioned a material change, not only in the laws of Spain, but indeed of all the nations of Europe. The one was the discovery at Amalfi of the Code and Pandects of Justinian, a work which astonished Europe, just emerging from barbarism, and which, as it contained the collected wisdom of the Roman Jurists, became at once an object of study and admiration to all men whose education placed it within their reach. The other was the collection of the decretals of the church, privately executed by a monk called Gratian, in the year 1151, and subsequently enlarged and improved by a compilation of authorities made in the year 1236, in virtue of an order to that effect made by Pope Gregory the IXth.

During the period of time that intervened between the discovery of the Pandects in 1137, and the publication of the “Fuero Real” in 1255, it is rather difficult to ascertain what authority the former code obtained in Spain. The modern Spanish writers state, (perhaps from a laudable feeling of national pride,) that the Roman jurisprudence has never been considered as the law of the land on the

peninsula; and it is However true this

not at this time binding as an authority. may be when applied to the present state of jurisprudence in that country, matured and improved as it has been, by the experience of a long succession of ages; and enriched as it must be by the incorporation of all that is most valuable in the Roman law; yet it may be fairly questioned if it had not during the interval we speak of nearly superseded the use of the old Spa

nish codes. This conclusion may be safely drawn: first, from its acknowledged superiority over the ill digested and barbarous laws of Spain, and indeed of every other nation then existing ; a superiority so striking as to be recognized even by the rudest and most uncivilized people to whom it was known. Secondly, from the influence of the clergy in that age-their well known attachment to this system of laws-the zeal with which they laboured for its introduction in every country of Europe, and their almost invariable success.* Lastly, from the very laws of the Spanish kings themselves, the codes published by their directions, viz. the "Fuero Real" in the year 1255, and the "Partidas" in 1260. Nearly all that is excellent in each of these compilations, seems to have been borrowed, from the Roman law, and hence the presumption strongly arises, that the sovereigns of that country, finding the use of the latter becoming general, it was thought more politic to sanction it by the authority of the state accomplishing at once two useful objects by this measure; soothing national pride, and rejecting all those laws which were inconsistent with the then state of society in Spain.

Of the collection of Decretals, (or decrees of the Pope before mentioned,) viz. those made by the Monk Gratian in his private capacity, and those made by Rayamundo De Penafort in pursu ance of an order of Pope Gregory the IXth, the latter only are received as authority in Spain.

In the work executed by De Penafort, the method of the Roman Pandects is very closely pursued. It is divided into five books, each of which are again subdivided into various titles. In the first, after various preliminaries connected with a ca

*These observations on the authority which the Roman law had in Spain, are not translated from the Spanish writers, but are my own ideas on the subject, introduced in the text, instead of a note, as better keeping up a connected view of the whole subject. The conclusions which I have drawu as to the influence of the civil law, are quite in opposition to the declarations of many Spanish authors; but they appear to me, for the reasons above stated, fair and natural. The, immense influence of the clergy, in Europe, during the middle ages, is well known. They had at one time nearly succeeded in supplanting the common law in England, and contributed essentially to the establishment of the civil law all over the continent, either as the only municipal code, or as supplementary to it in all cases where it was silent or defective.

Authority of the Decretals.

Change effected by St. Fer

son.

nonical collection, it treats of the dignities of persons, of Ecclesiastical judgments; which latter form also the subject matter of the second book. In the third, after treating again of the persons of Ecclesiastics and their benefices and prebendaries, some titles are subjoined upon the rules applicable to the construction of various contracts-how those ought to be interpreted which have for their object church property, or which appertain to its jurisdiction by reason of the personal privilege of the party defendant. The remainder of this book is occu. pied with the immunity of churches, of the regular clergy, and other matters of this nature. The fourth book is entirely occupied with the laws of the church respecting marriage, its antecedents, and consequences.And the fifth and last treats of criminal jurisprudence, and of the penalties affixed to Ecclesiastical crimes, such as simony and other offences committed by persons belonging to the church. It also contains provisions respecting church censures, and concludes, in imitation of the Pandects, with the titles, the signification of words, and maxims of law. (Reglas del Derecho.)-As the sixth, and other later collections, pursue the same method with that above mentioned, a particular account of them is deemed unnecessary.

In this state of the civil, criminal and canonical jurisprudinand and his dence of Spain, the Holy king Ferdinand the III., about the middle of the 13th century, gave much more force, extension and solidity to the Spanish Monarchy than it possessed in former periods as well by the glorious conquest of the kingdoms of Cordova and Seville, as by the prudence and sagacity with which he governed the countries he inherited and subdued. This Prince, and his son Alonzo, (surnamed the wise,) feeling that the multitude of particular jurisdictions, and the exorbitant privileges conceded to the nobility and gentry, divided and weakened the kingdom, determined, for the purpose of avoiding its entire desolation, to form a general body of laws, or code, which by its operation might unite all classes of society, and at the same time preserve a regular gradation of rank-prevent or destroy the dangerous and horrible effects of feudal anarchy, -confine the powerful nobles within the limits due to the prince-terminate the factions and discords between the fami

lies of the great and their respective vassals-and finally establish good order by a judicious and correct administration of justice.

The death of Ferdinand the III. which took place a short period after the conquest of Seville in 1252, prevented him from carrying into effect his salutary and necessary projects. His son, however, (Alonzo the Wise,) who inherited his kingdoms, and, as it appears, all his father's views on this subject, carried his predecessors intentions into complete operation by the formation of two codes, the first called the "Fuero Real," and the second the Partidas; the former was executed in the year 1255, and was designed as a precursor to the great work of the Partidas.

Fuero Real.

The "Fuero Real" is divided into four books, each composed Analysis of the of different titles. The first commences with the laws which direct the observance of the christian faith-the preservation of the king and his children-presenting all the obligations of a christian and a subject as forming the basis of sound morals and correct conduct in private life-Afterwards follow the titles respecting the alienation of church property; and it concludes with those respecting public officers; V. G. alcades, lawyers, notarys public, &c. &c.

The second book is altogether taken up with rules respecting judicial proceedings-of the competent tribunals-of the commencement of suits-the "Litis Contestatio," or joining issue the modes of proof, and exceptions thereto; and concludes with the mode of regulating final judgments. The third book is principally occupied with the regulations respecting matrimony, jointures, (“ Las Arras,") acquests and gains, and the division of lands which are rented out: (se dan a Plazos :) afterwards of legacies, and estates in trust, inheritances, tutorships, and other points incident to these matters. From the tenth to the twentieth and last title of this book, are to be found the laws concerning various classes of contracts. The fourth and last book treats principally of Apostles, Jews, Saracens, and their slaves.

These regulations are followed by an enumeration of various penalties affixed to different crimes; and it concludes with the law respecting adoptions, emancipations, pilgrims, and ships.

F