the condition of a rich and polished people. Hence we find on the establishment of these invaders in that country, the Imperial or Roman jurisprudence fell immediately into disuse; and for a considerable period after the conquest, the usages and customs of the Goths were the only rule of action. A settled residence, however, in the country, producing a state of society widely different from the migrating and ever changing condition to which they had formerly been accustomed, created the necessity of something better calculated to meet the wants of their new situation; and laws and decrees of various kinds began to be passed at their national councils. At these meetings the clergy assisted; and it may readily be conceived, from their education and ability, that they were the sole persons in those ages capable of putting them in a shape by which they could be transmitted to posterity. From these decisions of their national councils, and from various edicts of the Gothic kings, a work was promulgated in the 693d year of the Christian Era, which bears the name of "Fuero Juzgo."* This first code of the nation was divided into twelve books, and subdivided into various titles. The first books treated of the elections of kings, and of legislators, and the mode of passing laws.* The second, of judges, civil judgments, and the manner of prosecuting actions. The third, of marriages, successions, &c. The fourth and fifth, of the alienation of property belonging to the church, donations, contracts. The three following books are occupied with criminal law; the form of accusations, and the penalties attached to various crimes. The ninth contains the rules respecting fugitive slaves, deserters, &c. The tenth treats of partitions of lands, prescriptions. The eleventh, of the violation of sepulchres, of the sick, of physicians, of merchants. In the twelfth and last, of equity, of heretics, and of injuries. The code enitled Fuero Juzgo. * This is among the earliest, though not the first code, published by those nations who, after destroying the Roman Empire, settled themselves in the south of Europe. The most ancient is the Salic Law, thought to derive its appellation from the Salians, who inhabited the country from the Leser to the Carbonian wood, on the confines of Brabant and Hainault. It was written in the Latin language, about the beginning of the fifth century, by Wisogastus, Bordogastus, Sologastus, and Widowgastus, chiefs of the nation. The Burgundian and Ripuarian codes are nearly of as great antiquity. That of the Lombards, the most famous of all the systems of laws published by those barbarians, was written in Teutonic Latin, in the 643d year of the Christian era, about half a century before the "Fuero Jusgo." This first effort of Spain in jurisprudence is totally overlooked, or rather seems to have been unknown to Butler, the learned author of the Hora Juridica. Gibbon observes of this code, that it had been treated by the President Montesquieu, (Esprit des Loix, l. 28. c. 1.) with excessive severity. But he (Gibbon) says of it: "I dislike the style; I detest the superstition; but I shall presume to think, that the civil jurisprudence displays a more civilized and enlightened state of society, than that of the Burgundians, or even of the Lombards." Gibbon's Decline and Fall of the Roman Empire, vol 6. c. 38. note 125. + In Castile, the people, or rather the nobility, asserted the right of trying and deposing their kings; in Castile and Arragon, the kings were long elective; and in all the Gothic monarchies of Spain, the power of the crown was extremely limited. Robertson, Hist. of Charles V., vol. I. sec. 3. notes 31. 32. 33. This code, say the Spanish writers, though excellent in many of its parts, was better calculated for an elective monarchy than for that which now exists in Spain; and more conformable to the necessities of a warlike people, among whom, arts, agriculture, and commerce, had made little progress, than to a nation which (according to them) has made such eminent progress in them all. * The legislative authority in the Spanish monarchy was long vested jointly in the King and the Cortes, the latter consisting of the nobility, the dignified clergy, and the deputies or procuradores of the cities and towns. Even after the Cortes ceased to be regularly assembled, and the government assumed the form of an absolute monarchy, it continued to be the usage to convene the Cortes in the lifetime of the reigning king, in order that they might take an oath of fidelity to his eldest son as heir apparent of the crown. This ceremony was performed during the reign of the late king, Charles IV., in 1788, when the Cortes were assembled for the sole purpose of swearing fidelity to his son, Ferdinand VII., the present monarch. Under the ancient constitution, no duties or taxes could be exacted from the cities and towns except what were freely granted in Cortes by the deputies of these communities. The law establishing this privilege was enacted in 1328, not many years after the celebrated English statute de tallagio non concedendo, securing the same right to the English people. "It is a curious fact, that this law, though violated in practice, was still retained in the Spanish Recopilacion till the reign of Charles IV., when it was expunged in the insolence of despotism, within a few years of that revolution which precipitated the degraded monarch from his throne, and restored to his people, not that only, but all the ancient rights of their fathers." The constitution which was established in consequence of this revolution, was abolished by Ferdinand VII. on his return to Spain in 1814; but has again been restored by another revolution, the accounts of which have just reached us; and which, it is to be hoped, may establish the liberties of the Spanish people on a permanent basis. Situation of Spain from the This code, however defective it may have been, formed the 8th to the 10th political constitution of the kingdom, until the invasion of the century. Moors in the year 714 nearly annihilated the Spanish Monarchy. The Goths who saved themselves from the storm were obliged to retire to the mountains of Asturias. - Cooped up in this narrow part of the kingdom, and engaged in continual wars waged with their invaders to preserve their existence or extend their dominions, it is not to be presumed that the improvement of their laws could occupy much of their attention, or any great progress be made in a science which owes a great part of its perfection in every country to the quiet and blessings of peace. Accordingly, we find that during the time the monarchy remained in that situation, their government and their laws partook in a great measure of that feudal system which about this period began to obtain so much force in all the countries of Europe, acting in some with more, and in others with less vigour, according as the circumstances of the particular country were in a greater or less degree favourable to its progress. The king, it appears, during this period, on making conquests from the Moors, distributed the lands among the nobles who assisted him in person and with their vassals during the wars. To the large cities and towns, various privileges were extended from time to time, as they were conquered and annexed to the Spanish Monarchy.* This change of situation in the condition of the people, the increase of power given to the nobles by the division of conquered lands, and the privileges extended to the cities, created a necessity for new regulations. Accordingly, in the year 992, a code was published entitled Fuero Viejo. This work was divided into five books, each comprehending various titles. The first contained the laws by which the extent of the relative duties flowing from the king to the people, and from the people to the king, were ascertained; the obligation of vassals to their lords, and the extent of protection which the latter owed to the former; rules for the government of judicial Code entitled Analysis of the * Robertson, Hist. of Charles V. vol. I. sec. 3. note 34. Municipal corporations are of greater antiquity in Spain than in any other European country, except Italy. It was the prerogative of the crown to erect them; but the right was often delegated to the clergy and nobility. Their immunities were very extensive. 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 Jaws 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 not at this time binding as an authority. However true this 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 |