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• _: -,- :._ 0n the !llOrning of 19 in a privaW-residence in
J-' Valladolid, niore than a hnndred iitiles northwest of Madrid as the
crow. m;;,., a wedding took puice. A love match, people law): were
to proclaim. In its own way perhaps, it was-but only in its owti
... way; for .the ·parties' were ·practically. strangers to eaeh .other, the·'
groonl met his bride for the first ti;,e oniy follr days. before
the·eeremony. She·made a lovely bride, 18 years old, 'tan andJ:IIue-
eyed and fair, -with hair the color Clf copper, bespeaking her EiigliSh
anCestry, for her great-grandfather was John of Gannt, DUke of
Lancasrer, later immoi-tsliied by Shakespeare in the play 'R/,;Iu!,rd
II. The groom; ·at 17 a year yonnger than she, had the dark& good i .
looks of his Aragonese forbears. ·
•, .' .. - ' ..
There were some who opposed this marriage, among them tlfe
bride's · own· brother, who would' have preferred to marry her tlfl'
to the King of .l'Jn:l:uiat But this b_ride had a mind of hei-- oW)i {1!11
many 18Cyear olcf girls have a mind. of their own)· and. 1111-e-·kiir
way, over her brother's objectives, despite even. the obc
stacle that bride. and groom second cousins. -To this
of dispensation ·was presented but the document
a ;fqfgSey:ftOD.Cocted by-the groom, his f8.ther, and
ArchbiShop of Toledo. ·
. · Desplre the of 1;he it would have . ·
much prophetic VISIOn to_ realize that thiS was a marnage .of"'"-siir-
passing hnportsnce-to a· country, to a continent, and to the worlil
:- ;. - . . . . - . ' . . . ·- . ... . -·
For.. the . who stood, flushed and . frur, -before the altar. 'WliJF
. Isa)lella, princess' 'of Castile . and heiress to its ,throrie; the
was Ferdinand, King of Siciiy and heir to the throne of £ragan.
Castilian and Aragonese--:.but both of the Royal House of .Trasta-
., --- ---. '
Trastamara was ·a-- Castilian··· house ·-which··::for-more.·''8 ·--- .. '· ·
I , • - , - • • -
century had occupied the throne of Castile, but ·since 1410 it ·was
· also the ruling house in Ara:g6n, in the wake of civil disttU"liances
• at the College of Law, University of Ehii!p_pinea
on 6 January 1979, under- the ti.Ue "B_aekground to a · . _
** of Law, ·unj.versity of · Philippines_; ··qolde?",
J. _B. L. Chair. in Civil Law.
_z ·--
---- ..
·- ..
{VoL. 54
there over the succession to the childless Martin I. The Compromise
of Caspe in'•!l<li12;'linitllfli!itl;eiided .teeo&iiition tq de An-
tequera, son who Trastamara
sovereign of Arag6n. The Ferdinand of our story· was the grand-
son uf Fernando de Anteqllm"<l.\.·and .the granddaughter of
FerJ).lll!go c]e.}.I].teQ.uera's brother, Henry Ill .of Castile. ;!:'he m_?:rc -
!JW.te<J,. these same
:fapllly. ]l!\'1!9/;nwre made i,nevi)ia;\>}e,
thg Spain, • if s]l,Or\'<!J.e,
Wllrl <>f agajns,t the, MJ1Slli,n a '\Yar.wJP.cll, .in, it,s
l'i91lF5e, had,,!'W'tl'hedSJ1ai)l to. Chrj,sr ·
tii>:p.ity b!;ll> into .m'!'"'';j>us.,
t&;· W:as to a former' #eavet'ir61ii Genoai
?1\r.;'i\i C't%tiiio&aotoifibo .;,mni m'se;;pcn
-or tO ttea$iires cit tiie 'i'ntti#i;;<ildY to .·l@ill'-
pi\0'!> a' to f:n:
anQcther·a/ii'eriturer,' 11 Pbrt.Igiieile seaman· named Fl!nuto"de Magal-
. . • , -, .,_ . . .. . .• ,- ·.- ·• • \ ;I . . ,., '
haes, on yet another such expedition: and thus the· :ffrst"·cl't-
of the' g)!\!¥!, ti,t
ngJl Magalhaes him;!elf.,:<Vas,,tp· J>erish
-vi!)len,tly J;l,le . <if. !" distant Pl\l!:an isle ea)J.,,LMaetan. &d,
fq; <>{Jaw, it w:as to
-Rla'oss,pne <COJ!I;i.nent .. the ;fringes of another,. of, the okll'11.t
. 1Qial. JI'!!diii<in,Jtnown. to But a!J .that was tO. be iil the
· ·trow j;l)e .... _. •. '''"''
;,:n · l'. ,._ · ·· rl)''"'' ····" .. ·
.. '"' ., · .. , · E4Rify.i:I!li1HI1U:f DEVELOPMENTS ,: " ·_ ... ·,
The first major .settlers of Spain were the rfu.ct.ins, abOut whotri
little. iii but.hjstoria,ns that they were proba!ili' related
to ancient. Assy!ians and Chaldeans and 4J>ie to . sPa;p. frotp.
A.sia through Northern Mriea.
About twelve or thirteen eentnnes
the people of Indo-EuroPean
the. Pyrenees. from Fl'llnee and occupied what is now • .ll)odern Galicia
PortugaL-Intem.arriage. between the Iberian8' ai:td 'the
- ._ • • • • J •• -. - • • • • • ' ..... - • • • - .- '
ev!'llj:ually_ ptydueed a nrixed race called th_e Celtiberil':n!'• whose bailie
social gtructure,.,iike -that ufomost prinrltive-societies;cwas::th.e family;
l\. eollretion: of ;which formed the. gens; a group of whlCh, in' tlli>i,
formed the. tribe_. There suffieient·evideiiee that these,.Celtiberiaii
tribes had a fairly well-defined concept of property, of which some
•was private, • .. ·: --. , ·· " ' · ·":. ·, ·. ·
. ,·· : .. '} -:,: • ,-,-,r-··- .: ·. ' . · .. ·; ..... : . - . . :··
The rille• of the city of Carthage in NOrth Africa
brought the Iberian peuinsulli under Carthaginiali · infiuerice, but
··-=--- --

, SP4!!1S!l' Al!!TECEDE!!'llS· '
not. d.onli,J)atioo,,.'J'jle .of Cartilage ill; the
were silver and commerce, but by the of );he tiJJrd century
before Christ, couquest of. Iberia became e&sentialto Gartl)age, for .
ariotl\.er dty', ca\Ie(f'Ron\e; wali aiS& ex-
panding, ·alief' rival ·ambitions inevitablY bhiught these
- tWo g®i·eftles in'\:ii- bloody iiiuicterrible krtoi>ujii
as the tln'ee P1inre· W m: Iii 236 just'six yeantafter-:
..... . . ... . ' .
thil"'first of these wars; H11milcar Barca of' Cartliage led his armies
irit(i' Spai'n :tiid fouli.ded the city >ifhich to· tliis day bears his nailie,
Hasdruhal, his son-in-la'Y.• who 'suceeeded-: him upon his
deiith, on battiefleJd, established his capital a.t Cartagena (so
cliile<i beeau;;e the Ro-n<i referred to it as Cartbago ·Nova).' H:as- ·
dtiib:il's silccesso't was Haniilcars the
gteat.iat Cartilaitinik genetai of· all. Hanm!iil's military-· exploits
ali weli. krtowii.·-Biit'in the end; Rome was the city; and
in ino B;c. the kreat Roman general, Piiblius Cornelius Scipio, cap-
tin·ed the city' of Cartagena, pUshed the Cartbagijiiaus across the
sel.' back to North Africa,· and earhea for ruzru.elf the'name Scipio
MiicanUl.. itself vias at last destrOyed, .in:d Spain passed
ou to :Roman . ' ..
. , For the· next six .and ,a half centuries Spain was Roman ter-
ritory,. indeed on,e of the. most important Roman colonies. Admi'
nistratively, Spajn was first divided by . Scipio. Africanus in .197.
B.Q. int<i two. provinces: IUspllffia.Uirerior .Spain), west
of·:the River.)i)bro; and.Hispania Citerior (Nearer8paiil), east of
thaj;. river: Caesar Augustus, in 15· ur 14 .B.C., reorganized it .. into
three··.prOvfilCes: an,d · Lusitania.. · :Finallyt- ".in
the third century of the Christian era, Empetor DJ:oCietian cou"
stitUted ·Spain as one diocese under. the prefecture of _Gaul .. Five
provinces in the penhisula . and two others overseas 'comPoSed. the
dic:ieese: L!isitania; Baetica; Galicia; . Carthagenensis; Tarraconen-
sis; in North Mrica, Mapritania 'Tingitana; al\d }lalearica · (the
Balearic)slands) ,_ Romans in great numbers migrl!t¢d to Spaip,, as
soliJiers and ·as laborers tO work in the mines. Roman cities :were
Iolitided; 'Wliich 'fu the 'present''diij1"sti!lcarryl;!ieff"lfomiin uames
in corrupted or'truncared forms, .like ZaragoZl! (Caesarea Augustll),
Leon (Urbs· Septimae Legionis), Badajoz (Pax Augusta):, Astorga
(.(\sturica· Augusta), Merida· (Emerita Augusta),: Braga .. (BraC{lra
Auiustlll, and so forth: ·
. .
Through all centuries of Roman rule, . the histozy of His-
panie Ia:w is the history of Roman law' We shall not. deal directly
with Roman legal history here because that would .Iimke .. the scope
of this paper too large. Mor.;,ver, the history of Roman law is too
well-known tO relate here.
By the foUrth ceritury it was becoming clear that the magni-
ficence. of Imperial Rome was .not eternal, at leailt in· respect of the
-- p(!li_ticaj _!ltructure. the causes for decline may ]lttve been
--for that i$ histotians still debat&i&<iay and
is .certainly not within tliO scope of our inquiry-its external mani-
festation was the penetration into the Empire of the Germanic
tribes to the In miJ!!ations first im_llercepti?le and peaceful,
then in floods and torrents, these hare@" Nordic peoples--,-:huge
primitive men and women, lured southward by the fertile fields
and dazzling pality of _the Empire, came and settled. "To Roman
Spain. came the V andsls, the A1ans, and the Suevians, . <>CCUJlying
Galicia. and the southern re¢ons, leaving however the greater -part
of the land under RomaJl sway, But in the fifth century the trickle
became a llood, pushed forW-aid by pressure from a new and terrible
presence in the North: the Huns, thunderin.g from across the bar-
ren wastes of central Asia, to pillage and conquer _and destroy. Not
even the tall, robust Nordic warriors were a match to theile fierce
barbarians. The East Goths were overwhelmed arid brought under
'subjection; the· West· Goths (Visigothsl lied southward across
the Danube, and at Adrianople, their cavalry crushed the Roman
infantry legions. These Visig<)ths under Alarie pursued their erratic
eourse, tlirough northern Italy, the Po valley, down the Italian boot
to sack and plunder Rome itself in 410 A.D., then up again to south-
ern France and Spain to settle there, confining the Suevi.ans to the
west displacing the Vandals who crossed over to
North Africa.
. ·Thus did Spain becoine a VlSlgothic kin.gdom. In 416 the Visi-
goths established their capital in Barcelona; _then in Toulouse,
France; and eventually in Toledo.
The -Visigoths,. even before they reached Spain,· already had
considerable to ROman ways and culture, and this is im-
po,-w.;;t they -finally' reduced their "laws . to ..
"Writing the Roman in11uen6e was already marked. But· it must be
stressed that the preponderant ehiuacteristic of Visigothic law was
Germanic, rellectin.g therefore their own tribal · customs and
traditions. Tile Roman historian, Tacitus, writing about the customs
of these people, points out some interesting things as, for instance:
(1) Marriage was highly re!l"rded, and monogamy ·I! nearly
universal practice. .
.--- ""-"'
(2) was dealt .with severely- '' ••• ei. [marido], des-
pues de haberla cortado los cabellos en presencia de los parientes,
Ia echa desnuda de casa y Ia va azotando. por todo el iugar".• .
(3) · Wills were unknown to them,• and, in default of children,
:the brothers succeeded, and in their_default uncles on. both .
-. paterniil ·ana maternal [This i!tinfrlgulng beeiiulie the parerits ->
·-·themselves seem to. be omitted].
· ( 4) Their hospitality seems to have been extraordinary: it was · /
considered -inhumazi tO- ·deny anyone admission into one's houSe;
every guest, even a must be served the ·best fo04 one'S
resources could afford and if food· runs out, the guest must be-es-
corted to a neighbor's house, where he should be treated with the
satlle ;·
- (5) · The taking of interest on loans was completelY unknown
to theni.• .
Other features of Visigothic customs may be mentioned :
(1) Members of_the family were to render mutual aid and pro..
teetion, and. thus a personal offen8e was also a family
(2) _The wife had a right to.share in·property earned after
marriage, and to have .the use of a deceased husband's estate, as
long as she remained a widow [here we have the beginnings of
conjugal property].
(3) :Parental authority over the children did not include11f;he
jus 'llitae ac necis. (in this respect making Visigothic custom surely
mi>re humane than the Roman Law) .•
But all this was law, unwritten law, and the Visi-
gothic ruiers, their people now securely_ settled in Hispania,
growing increasingly. appreciative of the. refinements of civilization,
began thinking of putting their laws into more permanent fonn.
·Arid thus we reach·the·first important smgeTii the "evolution of "the
Civil Law in
The huSband. having cut off his wife's. hair in the presence of rela-
tives, drives her naked out of- the __ bouse and scourges heJ" _all- the -place."
"It-seems, however,' that _evmi" was felt early,
,for other hiStorians tell Us that the .in were familiar with
testam.eritary succession, ·men being allowed to make-"Wills, provided they re-
SEirved four-fifths for their descendants. _
4 Vide, 1 SANCHEZ ROMAN, op. eit., pp. 141-143,
6 Vide, CHAPMAN, op. cit., p. · 33.

._ j
rvot.: 54
' .. ,_ . . -. i; -i.::-.: '7- -.-· :. ..,' :- .. - ·: ... -·-j····-<!.: . ·-·· '"
Over a century ag:9, Benedictine monks of the monastery, pf St.
Gennam,'working on 'a pa! containhig 'o:f St. jerO-
me,· di8c6ver<!d beneath thir lftlrlace of· the. manuscript: t:raees · of an
ancient document; .. .t\Jr eX.lnil1l!ti&n of the_ was made,);>y:
·ana .they .msc:oV:er.,.rJ:Iiat the-_i>alimsest ·contained
- ehl.pters of the ·visigothic(Laws,'of. Eurie. ·.These fragments wete
pub!ishei! in .1847_ under t!J.e jaw-breaking title: Visi-
.lio'#wrum Reiiift ·antiqua legum .. · Ez- ni:Mn,branis 'aeletitiis
bibliotheoae :re:ititutam adiectit ''ViSi-
, .. -. •' . . . . . . . . . ...
gotliOrum lectiime. " ·
- . ... . .. . ; .. .- '' . ·"
. ,The evidence. from ·these fragmel).ts indicated. t)lat the docu-
ment was divided varioUsly into el).apters and titles_ -=· the !loel>Jn,"llt
was obviously a collection of laws. In fact it was the Code of. Tolosa,
tile oidest' Written <krroa'nfe law, probably promulgated (although
historians are not agreed on this) by Euric, a Visigothic kirig who
reigned from 466-484 A.D. Thus, this collection is more popularly
knoWn a8 the Code of Euric; The di;,irered fragments contahi chaP-
ters 276 to 386 of, the Code (except: chapters 313 to:SW; w)lieh are
missing) ; a f.ew of these extant chapters·are incomp)_ete, and in parts,
c61)1pletely illegible,- Nevertheless, of what can be . deciphered, chap-
ters .276 and 'l!17 goyern the division of lands. lietween Visi!l"oths
8J:!.d Romans '(i:a the Romanized subject people); 278 to 281'i'are
entitled De commerufutis vel commodatis; 286 to 304, 11endittJhi-
bus; 305 to 319, De donationibus; and 820 to 336; De s,;cessioni-
bus.•-- .
Sanchez RomAn that although the
iJ:!. the Code is not exclusive, it is predominant. The lio;rian. eiemel).t
can be discerned in· the rules on pui'ehase and sale,_ pledge, dona-
tion, loan, deposit, .;,.d testamentarY sofue of _which. con-
were theretOfore 'c<impleteiy uriknow'n tO the. VfsigothS, and
even contrary to the of the· . .
It is.·,xealize,.howe.ver, .that the.-C.ode -of Euric,
though. promulgated by . the conquering sovereigri, was not intel).ded
to be general law for all the irihabitants of Visigothic Spa1n; rather,
it was meant to apply ou:ly to the conquerors. It was, in other words,
Pers<>nal,. rather .than 'territorial, Iii,w. The subjugated Romanrni.d
ilihabitants remai:ned ·outside its pale, these subj eet people being
governed, · with a' good deal of confusion, by whatever remaining
6 Vide, 1 SANCHEZ RoMAN, op. cit., p .. 149 • .
7/bid. '
-......... .
of )wman law still

i""'Ollg.<JileJn, .. •Euric's
II,.4ecided to d.q ·sOinethwg it•· •• '"""J',, '.:., :: .·· . ·co ..
·_· .... ' .. . -.-, '! ... -.. ..;. l·. ,-_ .. ,.,--..
-!/.' _,rJ<.,- •; ':;-' •i-:,i.'- ·;•(!."->,. l,.tJ ... !_;Jl!H•I -'';>;:l.i'
,., • .. c .... " _ .T;f!E B:j:\EVIARJ OF .·:ii'Y.B:t ;: ., · cc•.
· ... ,,. : 'v .. , . ' . .. .
>i•· ·Thili'·i<n.g'.:,:;, .Ni.m& n: · · •· fonneil ";
.scboJar.g the early Stage-.of tl(eir'Rom8.nliation
.• • •. to a,lloy< •
.o;t.m"!}!;jl!lg :c::: ·vp<j<ir J;h,e le!!dership
!);•body of cQ.ll<lllei"e!l slib:-
on ot !mown Rom_an,law .. .l!$w collab!Jl',!(,
:whg • i11 Atures
.. m •. the ,Domlljf,S'-
Alarie, who, at·that.,city; it into Iaw,.
)1\'ith:·t!Je•·caviiat lihat on!y such C9J)ies •
.the Ani:jnus, were .. to,be .. consi!lereil;
Br\iVll;lry:,of :i!l!,fi!r
names: Lez Romana, Liber legum, Auctorita.s Alarici re{li8, 'L,erc. Tkl!o-
dosii1. '!IJ.d Cominonit'!,ri?fm. ·
, .. ,,. ·-· , . ... : . :J.( •. :· -·· . • •
TIU,s ,§,iide-, coming as it.did about a,quarter 0f.,a, century be-
fore ·J\lS#nian'a .. Corpus, is·. based on :ante-Justinian1Ri>inal\ law, eon-
sisting·)lf·.Impei"ial edicts and writings.ll$•Roman jnrlseonsults. Ex-.
tant editions of the'Code differ as • to<itS •.contents ;· .. nevertheless; it·
seems• from ·the-editions most widely b&'airthilntieitlmt it
eontilined •mueh 'of·what is found in the•i6•b0oks·of th.e·ThOOdosian
Code:• It alsti'l!ont;!iMd some of tlie subsequent N.W.ils;: viZ; of the
Emperors TheOdositt!i; Valentinian' lH, Ma'rciailiiiii"Matji>tean, and
Severtis tstattit.lS' passed .after the Tht!i>dciSiaii Code mit before Jus-
tinian]; lin epitome of the Institute& "Of' G<!iris; Re-
ceptae of Paulus; thirteen titles of the Gregorian Code;ii tWo. titles
·.of the Hermogenian Code;
. and a..l!hort, portion of Papinian's
R_espo.nsa. - '· · :; ·
. - . ' ., . . . . . .-.· -. . . . . ,.; '
_ 439 ":t-1;> . ., ·.- _---if

bffieW collection· of 1m penal ed1cts from· :to·r his own time. This.
aptfx_· .. -on:ly. in the'
- Ea:stern: Emp1re.·but a;}J;o m.the b¢en pr:o_mulg!tte(f.
in -the" same·· ·yeat ·by the Valentiiiia;u m·'in.'i_Ro#l,e .. Tlie
. Theodosianus. covet:s braD.ches of .law:. .::erimtnal

eeelesiatieal, and civil. ·. · · .
9 This Code was compiled ca. -.-296 A.D.,. .imp; statutes.
from Hadrian to })ioeletian. (117,-284 4,.D.)t··'(lri.g4lally ;ti;:'pJiv&W
bti,t.' eventualy_ given ·official sa:D.ctiQJi ,by, tJ:te It 3pd
.'!-Dd.Valebtinian Ill. _ -· .· -: __ -·-'-.-. . '
-· · · Io·This -.,..a-s cOmpiled sometime before 324-,A.D, the- reign __ .of
Constantine_ 'the Great, COntaining Imperial ; statutes, niost'Iy
under Dioeletian. Like the Gregorian,.· thits was, originally unofficial com-
_pilation, but.-· subsequ'entlY officially recogliized _by TheodosiUs· .,I;I and Vale_n-
tiriian III. · .. · · · ·
,_._. .
...w...· ..
? .-

- i
· The Code in .t:\yo .. parts : the text and ·the interpretation
presented separately, .""eept ·only in th_e part on the Institutes of
Gaius in which text.aJ¢ interpreta:tion are integrated. A few of
21tatut0ry texts, 'however, do J;lot have a eorre!lponding interpretative
expositio_n, where the compilers pr<>bably thought none Wall :ne-
. .'---- --. ;;
_-it Wall that tlie legal syst';.m. in eatly Visigothic Spain
was Mt · teriitcujal; but persowl - one law ,predop!inlmtly ·.Ger-.
mailic·;' fqr the·eon(Iueror .Goth and another, predoirdl)antly Roniap,
for,_the conquered R\lmaiw-IheriaD..' This system, oLthe
ei>ilY ilaYs of Rome before the Twelve Tables, called by SP,.nish legal
doble" or 'legislaci6n de ca3bla" waa pef-
baps ''anti-j!lridieal", and it could also lead to -confJISion and injlll!-
tice· as where the controversy Wall between a Goth snd a native {in
which ·ease Visigothie law Wall held to apply]; But it paved the
for· the consOlidation -under later monarchs. AB Sanchez' Roman
hall observed:
. . . si Ia lei;slacl6n doble, 6 de eastas, es en pri:ilcipio
·altamente perniciosa y antijurldica, y por tanto digna de
ser· como sistema legislativo. -de ia ..
epoea y laS poi' que entonces atravesaba
Espaiia, eli digna de aplauso por favoreeer · Ia conquista,
facilitsndo Ia dominaci6n goda eu nuestro pals, a Ia vez
, que ofrece un testimonio de respeto a Ia lihertad
·de las distintas raza8 e!'lCel'radas en un misino· territorio, sin
meniua, de Ia unidad po!itiea. -Fue· ademas 16gica
eonsectieneia de Ia ti)Ierante conducts de gobierno; iniciada
por· los primeros monarCa.. godos para con el pueblo ven-
While the Visigoths were: consolidating their- rule, events of
far-reaching siJ!rufiCance occurred in- Constantinople.· In 527 AD,
,; PORllant 'lad Jrow Ji<>-<:iil Rl!.ll!8nil!-) , ..J_ul!til;lian J>:v. .name,
aseehded the imperi_al throne. :ije dreamed of recovering the .lost
Western pr.ovin_ces and making the- Mediterranean a Roman - or
11 " •• , the system· of double, or cl.ass, legislation is, as a rule, highly
and anti-juridical aild, should be rejected as a legal System.
And· yet, considering the clremnstaneea of Spain's historical development
at the time, . it was a desirable thingt inast;nuch as it Stabilized the Conquest
and' facilitaW the l'l,lle of the. Goths. At the same time it w;as a· manifestation
Of rei:lpeet .fOr the··personal Uberty of the members of the different races living
in the same' territory, With no sacrllice of political un,ity. It was, furthermore,
a logical-" result of th"e tolerance· shown 15y the early Gothic l'tllers in govern-
ing the ·conquered people." i SANCHEZ RoMAN, op. cit., p. 152. ·
perha,ps tll,e better term now is Byzantine .....,. lake again. N
r did
he CQntent himself wifu mere dreams,. and so the imperial legions
-were dispatched westward in a campaign. bf. re<\Onquest. ·'l'hey ·:)net
with temporary success and huge portions of :the .West, including
southern Spain, were won hack.. But that was no more tha,n · momen.
.. , -·:·. taey; what was won wils quite quickly li>st ag8.fn.
· - · -· · -• '-;,.,hieveinent wwr not-in tile- Victories of his legions, .but -in the en!"
Construction of enduring structures; the Ha- ·
gia Sophia - originally built by Constantine and. bumed in · an
. • insurrection. - even today it stands, the' j ewe! of Istanbul; the
· other, the great work codilieaiion, whicl! .exists to this day,
world..;;_de in its . inlirience, surely as dm;able aS' ·the Hagia Sophia
· That this codification was achieved at all is, a tribute l;o. the
vision of thiS- Emperor. The imperial commission for the work was,
given on ·15· December 530, 16 December· 533, the Digest was
published, and became law. a fortnight later, followed by the Inati-,
tutes, which took effect on 31 December of ·the same year, and. then
the CQdex, on 29 December of the following year. The CO'f1YUS Juris
Civilis, as we know it today; contains. a fourth part, the Novellae,
or new laws enacted subsequent .to the first three parts.
Because Spain was no longer part of the Empire politicallY,
Justinian's codification natUrally did not extend there, except til<{
recovered area in the south. -Its influence in Spain came 18.ter; with
the of the universities then, even later, )Vith Napoleon
Bonaparte. But from hindaight we know that the work of Justinian
and his · jurist Tribonian Was of priniary significance. One look ·at
the structure and content of our Civil Code will show how. ml!ch we
owe to the Institutes of JllStinian.
·Meantime,- ill SpaiD., as we·.have mentioned earlier, consolida--
tion. of Visigothic power was proceeding .apilce. During . the reign
. of I.eovigild (573-586), j;his powe; '!""'!Jh,re;>_wn'l'IJ!"q!ll w_ifuouj; an<i
from within. To the south were the Byzantine territories, recon-
quered by Justinian; to the west and northwest, the· kingdoms estab-
lished by the Suevians still stood. From within, there was consi-
rable ten:Sion arising from religious differences. Tbe Hispano-Ro-
orthodox Catholics, while the. Visigoths . were Arlans.
Tbe first threat - the extemal one - was I!Oived by Leovigild and
his successors by military · means. Within the space of 60 years,
the Byzantine and Suevian territorieS were con<juered and made a
part of Visigothic Spain. The religious problem. was. settl!!!l by Rec-

. .,.,
'10 [Voi.:''-!>4" ··
Letivjg-ild'S.-son,· wit!li;:llli! Simple·.and: Mnny;:·decisi6n:i0f con-
• Gi!tliolieisnf -'-'•·an exantiile which was emulated'by many
llf. the ·visigoth&('l'hus by .the tllird. decade· of tbe sevefitb century,
-•W:isrgothic rule ov'er the.>J?i>llittsula was •secure; ,. : · . ..t("· -
....... · , .. : ··.-: '.:::_;,_. :··· .. ,.. . . .. :··' ·.
,._ ••• pne . t)le
the,ll!'-wiel<!Y systeJn-1>BeuW4Ci4n doble.cTbe obvons sruU;
fion was,,tJ,ie adoittlon .of a l;...vrthaf W:QU!d be CQminon i<>' bOth' -
the. bideed. the time
:for thi8;.,_,Jl!iertakirur, e<iw;lc1Ehini, the iricrliasiliir
between; well.. Ill' the of,' .. ahd'

wintli (650-672), Etvigius and Egica (687-701): Tlie ·
te$ult .was -the· firiit :and, m .mimy respects. tire' greateSt, .miidieval
•compilation·· of·'Jaw .: ..... : th(VFuero· Jnzgjj; origllllj}ly knoWn under
varioliS- names: Cod..: Liber Goth0ru:n.; Lei Vi8igothoncm;
Lib'e:r fwli:ciorum, Libe:r • judietmli;· Forwm_c Jiu!icum: This last was
·corrupted in the" thirteenth c<mtory 'into the term :FuerQ. Juzgo, .. by
-which--We know it a"nionumental achievement, con-
sisthtg of a prelimitiary. title and ·12 :bQoks. contaiti!ng 54 titleli fur.
ther subruvided inW: 578 lawii. Originally \vntten- in ecelesiastical
lAtin and qanslated in the thirlee!!j;jl century into .it was
law 'for all Spain _:::for conqueror. a)ld c.onqilw-ed.' .·. ·.
. .... . . . .. ·: . . . . . .
•: · • Although only· those· parte dealing with civil da'W .need detain
'us here; let us look ·:at ·the general··structure i>f-·this vast Code:
.. :i> .. ·. is . entitled . J)e . . pn,-;..ipum,
··and <;<>ncern8 'itself with .the monarch.y. .. r;_.: . •.
2) The first book, entitled De· .instrumentis lega!ibus, deals
. with lawmaking. · • · · · ·
' . . . .•·
Sl The s¢cond book, ·entitled 'De negotiis causarum, mandates
the· general application of. the •law throughout the kingdom, thus.
niakiilg th<f drastic chahge froin•personal to territorial--application.
. ·4): The third book, De gov..;,.. man-iage .
·. 5)--The fourth, under tlie heading, De -ordine natura!i, treats
of family relationship and succession.
6) The fifth book; entitled De transactionibus, is the law o.n
. . 7) The sixth, seventh, and eighth books, resp..,tively
De sceleTibus et tormentis, De •ftl,rtis et fa!laciis, a11.d De inlatis
violentiis et dammw, conStitute the criminal law.
.. ;,' 8) The ninth 'lm0k;<.ealled .. De jugitivi$ et· de' deals
with military deserters and ecclesiastical asylmn;.:'
. 1- .. ··{;'' ··; ,:., . , .. > r_ •• , ••• ,, ' ' ' •
9) The tenth bop/!:; title D{ diyiSi'onibwi et annoruni
_ at_qU:e . . leases, and
prescn.'ption. · · · · ..·.·.. . · · ·,. .. . ' · · ' · · ..
. - - ··-"·''
• .. ·The' eleventh De aegroti$. atqu., .. mortw ·et ··c:
t;ansW.annis negotiatoribus,_.-curi®Sly :·lum,ps
ing physicians, the sick, cemetery violators· (ghouls must have been;
, a problem in those· ·dl>YS) , and:.maritime collll1lerce. · ·
11) :Finally, the twel:ftll: bOok,· ealled De removendi$ pres.Um,
. 'et omniuni iiae+eticifrum omnimobilo iiecU!i eistindis, aeals with a
variety of publici riiiift!irs, iiicludulg' the ailiriiniSti:ation of justice
·and,. Slid .to !'!Pl\bqr.of )1;\r"l\ P,rovisions agains,t,;tl!e ,Tews.
·. ·· It· is important tb W<ite that·•the··Fueto Jl%7:go ·was·not' a·:.cei3e
as we understand the term today, namely, a: collectioll' of. .lam· on·
. O)le subject w;as. .. a of rules·
relating to publlc law, cnm1nal law, m!>re@tile
law, and civil law. Hence, books·-·g,-··4, 5, an·d 10-
here.· · ... .: '
. .: . . . . . . _. . .. ' . ' . -·- ·. . . ·._, __ .·· .
. Since the F'uero Juigois tlie first'p>ajor coinpi,Iationi!i a·:lo'lljj' ·
_series,-it is worthWh_ne· to sorrie of its pi-.ominEmt:
lirouping' the portioru! ouffa,uiar divisioi).S pf: (1)
the law of persons .... nd famiiy; (2)' law of propeycy; '{3)
law of descent or sueceSsion ;· and ( 4) the law of obligations and
contracts. ''·""' · ..
A. The law of p!irsQns and· family:
(i) A major change refieetiDg the social forces at work tOwards
U)lity was the provision;.,allowjng interjnarriages. between Gotbs·and
. Hispano-Ronums. . ,,
(2) Two )rinds 'of persons' are - the natural. or
physical, and the juridical; foll9will1( !'!.,.. .
not all huinan begins are persons (for slav&y was recognized)
'and not all piirsiins are human c'eill!is. . • . .. .
(3) For a natural person to bec.considered legally born, he
must have lived for at least 10 days and 11een baptized:". ··
( 4) The age of majority was 15 years.
'($) The following were·the impediments to a vslld marriage:
12 Cf. PHIL. Cn'lL CoDE, art. 40.
-- '""--'.
-, __-
. '
-·'. -

(VOL. 64
(a) difference in status - i.e. between a freeman and a
if the woman was older than the man;
holy from subdeacon up;
re]J>tionship - to the seventh degree, computed in_
the same_ -
prior existing niarriage;
crimes against chastity, specifically abduction and
rape, the effect of which (and we would find this
strange) " was to make it legally _jmpossible for the
felon to marry the victim;
the temporal impediment; i.e. one year following the
dissolution of· the previous marriage.
(6) There was no minimum age requirement for 'marriage -
anyone could marry who hl>d reaChed _the age of puberty ( f!-ptitucl
:Para- la P,.ocreaci6n).
(7) pre8cribed ceremOny for marriage is charmingly
described by Sanchez Roman: -· -
. . : la esposa iba cubierta con un velo, simbolo de su
yirginidad; prestandose el conSentimiento par· los esposos
publicamente, y siendo a eontinuaei6n bendeeidos por ei
y uuidos por el diaeono eon una cinta blanca y
en reprt$ent8ei6n del lazo _matrimonial, por ·Ia
ltgil.dura, y de Ia P.Ureza y £eeundidad, por los eolo_res."
'(Sj The concept of conjugal property is clearly discernible
\ in the Fuero J uzgo, which recognizes as common pr.operty of the
spouses whatever is earned by the effort of both and divides ,such
property in proportion to' the contribution of each one.
(9) Patria potesttis was -acquired -solely- by reaSon of marriage,
the -Roman concept of legitimation and adoption being UnknoWn or
unacceptable to the Goths. On the other hand, the extent of the
patrif!- potestas was not nearly as absolute or as fearsome as in
l.S Under Philippine law; marriage the· offender and the victim
is not only it also extinguishes criminal liability. Art. par; 4
of the Revised Penal Code provides·: In cases of seduction, abduction, acts of
lru!civiousness and r-ape, the marriage of the offender with the oft'ended party
shall extinguish -the.-eriminal action a:r remit. the 'penalty imposed upon him.
The provisions ot this paragraph shall also be applicable to the co.-principals,
accoinpliceS and aftex the. fact of the above-inentioned: crimes.
u. "The bride wore a veil, symbol of her virginity. The bride and groom
expressed their consent publiclY. They Were there blessed by the priest,
and were united by tlie deacon with a white-and-red-cord, cord-
the-. matrimonial tie, and the color Jrignifyfng purity and fecundity." SANCliEZ
ROMAN, op. eit., p: _186.
- I
_, ...
Roman law, the ius neciS being available only when either parent
caught the daughter in the act of carnal indulg_enee (in flagrante
delicto). The rights of infants, and even of the unborn, were scrupu-
lously protected (perhaps here we can learn- $0mething from these
· semi-civilized Gotl)s) : infanticide and abortion were punished either
_. - hy death, <iF, "lllore leniently, hy the gouging 'Out o{ ,one' If eyes-; .tli\l _
__ mother wlio-=procured an abortion_ was· reduced -Io &lavery:-- -
_ (10) The mother exercised _substitute parental authqrity
event of the fatl)er's death hut· this was lost if" _
(11) A kind- of adventitious -property (similar to our --Article -
321) is recognized.
B. The law of propeity:
"(1) The modes of· acquiring ownership were: a) occupation;
h) accession; c) prescription; and d) succession. Occupation oC-
curred hy conquest, ·hunting, and fishi!ll!. Accession, hy huildi!ll!, •
planting, and sowing (the same -as' ou;r accesi6n industrial, except
that accession in our law is. not a mode of acquiring ownership) .
Prescription was either. ordinary (for 30 or eXtr!'ordinary
(for SO), the first governing all cases ·save the division- of lands
between Goths and Romans and property of minors. Succession we
will see later.
(2) Co-ownership was recognized and regulated,
(S) Servitudes were classified into personal and ·real, the lat-
ter referring to pasturei;l)lds.
C. The law of descent:
(1) Succe..sion was either testamentary or intestate - the for-
mer occurred hy virtue_of an attested or a holographic will (an oral
declaration of testamentary Intention being allowed ouly in a ·very
rare situation to whiCh we- need not advert here) .
Ouly freemen
could he witnesses ·(again ·except in one rare "instance)_. _
(2) The minimum age for making -wills was 14, and 10 for those
-:: in ·periculo mortis.
(3) The reserved portion was large: 4/5 of ·the father's proper-
ty and 3/4 of the mother's, :ffith a portion allowed as mefora, and
a preferential order of heirs._
(4} Disiilheritance was-limited to certain specified grounds.
Hi CJ •. J;Sook IL Title. ·v, Law ·12, .Fuero Juzgo.
14' . [Vor.; 64;
.. : (J:i) An ·order-of intest<Ltei Wl!!l·•. esteblisheli.. . ....
. '<F i'l '!ltle itZfiii of'!J'!!t;
res.m;a: which into the rtsei'liii' tfO'lfCiil; this feature;·
iri i!i'e of;Won'of' i. coinm'eiitiltor; · iltir
'i'Jie itself.¥n::in-''' .
· terestiiig Stui!Y, biit we Mvt·not:thii tii)le 1t here,·' · ·.-._. ·- _
-- ' - .. :: .- _,_: -,. -::"- . --;i-.: ._,:;::;_-.,.-,·--... ·. :- ...
.-.·J). T¥)a;\'lr,of,ohjjgati9IIS ,. . , ·
(1}••1Conttactual capaeity.·was.:'acquired·. at -the .. age of 14, in-·
consistently· with tl).e:proVision.making 11) t;he age .of majoritY.
·_, __ ._ .. ·. -· -··- : .. • .-.· :·--: ·--- .... . ' ·. ' ·.' '.
(2) Minority, insauitY, slavery, and force or a con;
(3) The following contraCts were regulated: ·a) <!ale;- b) lease;
c) 1I!ufU1)m; d) el depasit; f). donati9_n;, g) ,mortgage;
and h.). pledge . (both J>f these last .two. beirig den9J;uinate4 11<1!'10) • · .
. . .· . . . ....... . . .: ,. . . ' ,. -. . .
·,These, in. barest outline, -are the salient pr{)visionsc of the Fliero-
Juzgo- relating•to· civil'-I>IW" The Code has been highly praised,i:a,nd.
its inftuenee acclaimed; In the -words of Walton, "This Code' is ·:per.:
haps the most fa,moua, the-moSt important, ·and the-most ·:regular
and -eoinpiete -of ·.all the hollies of law, forined -sftex ;the -fall • of the
.. - ."
'!- · .·c;, " ...
And Sherman bas this to say: .
The Fuero Juzio is .the nrst great inediev<il· ;,.,mpil,.:.
tion to. combine systematically· J;toman and -Teutonic law.:
it contains not only'' ancient GOthic CUstoms and many
edicts of the Visigothi.c, but it Jia8 lneorpomted
considerable Cafton law from the actjl of,etl<;)esi,asljcal_c<>unc
ci!s (referrirtg here to. the Councils of Toledo, a series·
· of national synods held' by _the Spanish ChUrcb)'f and much•
of- its· law in iriherltance, marriage; eorp<irations, · owner- · • '
ship,· prescription, aiid · eoritrncts is ·cOitl'<inriable· to· Romsu ·
··j-urisprudence . ·. -· .. :Hlstoriea!ly, the nioderri ·'law of Spain
rests on. the Fliero · J uzgo. Ahd the Visigotbic Code is also
the parent law of alL co.untries in .America ever under
'spanish ruie." · · .· :· · · ·. · .. ··· .. • .
And -we may a<ld, of the Philippines I.'S. well.
' . --··-
But- the noontide of tliis Code was -brief -· perhilps· two,
haps three, decades, perhaps even less .. F.Or: in. 711 AD came the
1!3 Vide;: 1 SAN_cm:z· ROMAN,- cit;·, ·p. --188. · .
181 SHERMAN, 270:(t-937J:. ·- .

·-- .· .
eclip!JI', on the banksmf,::the, and
'thoo :ailroasiothecifear.struc,kdal)d, rode .triumphant•.tQ:e, -warriors,· of
.. .-.; .. :. -'---.:,
't.B\''.: - ::..-7!"-:·;·:; :: ... "> .. :·,;_:::" ;_-_. - · .. · ... ·· . :.
-......... - - ·-"'"'""'''""'"RS • -.m ·· · · •_-_·
,;.·,_..:.·, .... •;:.n..L'!W-1" .liJ;.,WLL\,01!.1 - •. -. ?t

f ... Nottlfi!:ciel.
with tlie' zeihi th ', : ded,-. ·1-2 .
.. .. .. , .. , _ , , ey uoll ,
strong, bh' .ii :·- :_
.forever borne his name, the hill of Tarik:
tar. Then; at Guadelete, Roderie,' the Yisij!'_othic king; J¢!1, In seven
Years it;;was. o.irer =at Ieaiit ·:ror. the moment . ..:- and:lslairi's 'crlti.
cent 'wM.,supreme for scatter.ed. pocketS of' re$il!tiu)da.
in the Pyrenees and the Cantabrian mountains. - •::... · ,:.:·.c:· · .· _,,.
. :. tjme ·-ChrW!endoni:J\Yaidil:. faitdri 7il2
th"'!'e th!' .tide turned; :Poitie>:S;
wher'l' ]\!:Q.Q!'S,:WE!fe b) 1mtt\< armu;..:U)jder
Gh;!r!I!S 1\!ll!'.l;el.: the,, ·:maio.::. d!Jmus ;. thel'e ·at in
one of t1re Jll?-"t in.bistQry,,ealled
':\'9llrJJv·thll Mlll! ·power was stopped, and• :the lrope
o:(.:reeonqu.I!Sh'Wai! js a. glotious.tale"'the,ila:mp_aigiuif re.-
cQvezy ,_.., t.he:R®onquista ---., not a .SUstained ':war but .. a sporadic
drive, fiaJ;.ill1!'_:1lP. in periodic fits, now here, ilow •there.' But if:.:the
caJilpaign .WM spa.<!modic, the spirit that fired was not, l\Tever
wouid .Christian Euioj,;, rest lin til the Moor: liad 'been, cast back
aia. 'To tJuS tlui-1lt1wi.r of Europeair
it.!.ili, fii soiemn vii*· :rruide a thousand alt;u.s; ti;troui;h ij:;i.
clangor of a thoriSand battles, amid tlie cries of victory. i>r ·.deflia:t,
· while Christendom)milg breathless on the bravery of its young men
·at arms:.:'lt is· a·:splendid·taJe; gloriously: told and'.g!oriously·remem" '
hered. We it still,.in the compelling cadence of epic'-"-' the gloey
and the .grandeur; the .couraga-and thll cruelty ...;._·of figures·larget
than life, looming heroiC: on ·the embattled fields •....:._ tlie Cid ·.eam-
peador i besieging .. the Moorish citadels, and· Rtiland, lying woun.ded
unto death at the pass"of .Ronceavall"'l; ·"upon a steep hill, facing
Spain," and .. proferring his .. glove.<to .. • : --- .::- •. -- · · ,,· -· .
. The ·story of will take us to tiie vei:i end of
the 15th century, to Ferdinand and Isabella, the same ones· whose
wedding served. a!'the ·vantage :Point of- ·this hiStoriCal joilrney. An
un!oldiug drama 'lasting just nndet· eiglit centuries· .::..:- in 'thi! cOlfi,e
of which 'Spruii"was' to be pro!otind!Y affected ·: · · · -' -- -
. ' ' ·-.. . .· . . . '
Upon its eonquest by the.· Moors; Spain ··(more ·prec)sely,- .the
Iberian:Peninaula) was organized as an emirate under 'the· Omay,
-- '
·,;.: _--.
, .
' .·
[Vor. 64
yad .caliphate of Damascus. AI; a result of the passing of power
from the Omafl'ad to the Abbasid dyna.sty, which eStablished itself
,in Baghdad in the year 750, a young membey of 'the deposed Omay-
·yads, Abd-er-Balinian by name, fted to' Spirit;,;' seized eontroLnver
the peninsUla; and there -established an independent. emir>IJ;e, .setting
up ·a m;ignifteent capital at Cordoba, by Guadalquivir. In
- ccthe <me of his deseendalits;·-'::Afuber:Rabman III, as-
sumed- the title of caliph alid his 'kingdom beeanie kn<>wn as the
·of Cordoba.
_.AI; _in· the rest of the Muslim world, the primary source of
.law in Moorish Spain was of course the Koran, which was sup-
by the legislB.tion of the caliphs. There was no such thing
as a formal elide. ·
_ Now, the Muslims were not barbarians. They ]lad come pos-
sessed of-aeivilizalion which was to·have elfeets.on Spain
and; ultimately, on Europe; It was this·ciYiliZation which served as,
a major vehicle for the rediScovery by Europe .of _the great classical
.and By,;antimr eu1tures. This ciVilization bequeathed. to Spain pre,.
cious legacies in the arts, architecture; . mathematics,
and. the physical seienc.,._legaeies too numerous to enumerate here.
. Moreover, the effect of Muslim culture on the Spanish colonies,
which were heaVily peopled by Andalusians, is incalculable.
The history of Spanish· law, however, developed in the context
of the Christian kingdoms that gradually emerged from territories
won back from the Moors. Therefore, it is to these little kingdomS
that we must look for the continuation of our story. ·
After Tarik's conquest, nothing was left of Vlsigothic Spain
except the mountain fastnOII&eB of· Asturias where the remnants of
the ViSigothic nobility, clergy, ani! army established themselves.
·They elected a Visig<>thic duke named Pelayo as their king. At
Cangas de Onis, -he fixed his capital and; having organized· his· sub-
jects· to resist the paynient of tribute to the Moors, he did battle
with a punitive Moorish expedition in the valley of Covadonga and
dealt the.-Saracens their. first. defeat. This was in 718. The. kingdom
of Asturias was secured; later it was to be the cradle of the. Rec'o'n-
At first it was not so much a war of reconquest as a unilateral
withdrawal by the .Moors, weakened by internal dissension, as well
as a lack of interest on their part to retain the infertile lands in
the l)Orthwest. By 757 the frontier lay just south of the River'
Duero._ It was a ftuid line, with a .. kind of no-ma.n's-land separating
the outposts, but, owing to the lack of organization of the Christian
'17 .·
-forces, the line, of demarcation never really went fartqer south than-
the Guadan;-ama Mountains. Thus Aragon and. all of• central- and
-southern Spain remained Moorish for a g'o<id number of years.
· · "1.'1ie evacriation of Galicia and Leon by the :Moot's 'ilnited these' .
a king\lom to be Ci>Ued._
·:'the kingdom· of LeOn, and in "that reahn; in tile ieigti_of
. el was discovered the purported tomb of .the apostle James .
·the· Gi'eater...,Bantiago. !!'he village . became a shrine (Santil.go ·de ·
. Compostela) , art d. the· shrine an inspiration in the: batties. agaillilt
- -- the Moors. · · ·
·' .:-:- . .
Meanwhile the Basques of Navarre. were able to establish an ·
independent kingdom, and, about the same time, the Aragonese. ·
Catal;m,., too, was snatched back froni the· :Moors by the FrankiSh.
·kirigs between 785 and 811; Subject at first to the· suzermnty- of f;he
.king of the Franks,-Cataluiia soon asSerted and obtained. its ind""
pendence under the preponderance of the Count of Bareelona. In.
the tenth centory, yet another kingdom arose: .Castile; so called. ,be-
cause of its numerous castles facing the Muslim ·frontier. ·
At the end of the fi,rst millennium, the kingdoms of LeOn, Na-
varre, Arag6n and Castile 'were momen1>\rily united . under Sanchi> '
· tlie Great of Navarro, wh_o styled himself .the "Kirig of the Spains:••
It could bave been· .a . development of ma,j.or !rlJiniticat\.ee, but f.or.
the fact that Bancl!.o undid it ail by dividing,,Lear-lil<;e, ·his
dom. among his cliildren-an act whiCh fragmented the realm o;nc,e_ ..
again. · ·
The breakdown of the Caliphate of COrdoba in 1031 into petty
states, called tai[a8, was a fortunate event for the emerging Christ-
ian kingdoms. These minuscule. enelaves; waging interneyine -strife,
fell easy pr,ey to the Chri_stian kings. But that exp..,SioD. was sloweil
doWn, though 'not stopped, in the last decade of. tlie deventh cen-
. tUiY with the advent.of a ·power in
Africa,_ the Almoravides (religio_us men), whose eiil:pefOX, •
.entered Sp!!)n" _de{eated Alfonso_ VI.. of. Le6n .in. battle at Zalaca, nea,r. ·
Badajoz, and reunited the tai!as 'into one Muslim kingdom again.
Nol( Ion!! after, however, the Ahnoravides, too, vi!}tims their
oWn dissipatiQn, and Muslim Spain. once· again. into.
taitas,. until li46 when the Ahnohades (unitarians)' a
of the Berber Moors, invaded the peninsula and rennited Muslim
<Spain once more. But it was a Muslini'!Sp:>in that. WM steadfii
shrjnid;ng before the iulvanee of _the . Christiai!, ldni!dq!""· ".In lOf\5
Toledo fell and thenceforth became the. center of the Reconquista ..
Soon after, Valencia. was captured. In 1164,, Aragon Cataluija
.--- .
. :...... .. -.
. '
wm-e. unite<Las a. siilgle kiilgdom ·under one monareh, :·and the united
realm. waa ealled·· 'the kingdom of Arag6n;::although. Catalufui was
actually {he· preponderant. paP;. ·In .eentral Spain; consolidation wa:s
a more ·erratic afl;l\ir
. tO a suceessioll of ki;nga who.
Uii.ited anq divided the kJndoms of Le611 11nd Castile. .N (WeXtheJess,
. pg)ltillJ!' or·as r!'l!lm, ;LeOn a11cf stead- .
captiirhig 'Extremildtrra and jtl'12l2, a
of the of LeOn, yi).stile,, and the newly. )in; ted king-
dom of Ai'ag6h, won a great yieto<Y. at Nav!IS· l'olosa in Anda-
luell>. itself-· · the southernmost part of Spain. After this the Mus-
lims.·eeased to be a threat. They had retained their foothold on the
P.enirisula;, ,to be sure,- in the small killgdom of 'Granada. Jlut
· a:fter Navas .de Tolosa, it was ouly a mstter of time, Eighteen years
later, in 1230, Castile and LeOn were fuialJy umted into .one kiilg-
dom-'-that..of, Castile,. and the Christian territories of SPain :tinned
up. To the kingdom of ·Arag6n then went Aragon proper, Cataluiia;
and Yalenell>. l'o i;he killgdom of Castile went the two Castiles (Old
and New), Galicia; Le6n; Asturias, Extremadura, Murcia, and much
of Andalu<lia. 'Navarre .)lad lapsed into a dependency of France
and Portugal had begun to develop along separate national lines.
As for the three Basque provinces of Alava; Vizeaya, and Guipiiz-
. ro.i.-they were for a· tiine contested between Navarre and Castile. .
. . .
Jlut tii_e llasques were never an easy people to subdue, so they· were
left mainly ·to theft own devises-and their umntelligible
until by the 14th· eentucy all three of them were brought to tbe
sovereignty. of Castile. Of course we know. tbat, to this day, the
last ha8 not been said of the llasques, but that is another story.
And .0, what picture has emerged in Spain as the 13th century
· IJUis itS· !Wfway course? We have two· Christian kingdoms, each
eomposeq of· several regions, and the Moor eonfined to Granada.
The political situation is complex for, conSolidation, the
former· separate kingdoms retain .a measure of autonomy.-
And wl>at.of tlie 'Ieiar Situation? · - · - ·
The piecemeal reconquest of Spain and the resulting establish-
ment of numerous kingdoms, cities, and towns gave rise to a vast
divel'Slty of laws and jurisdictions. Nor did eonsolidatign resolve
this co:rifusing situation, for in praetieally every ease the umfieation
of territorieS under one sovereign did not produce a uniformity of
legai sYstems. What happened rather was tbat a political union
was created, some stronger and· longer ·lasting thim others, but
the several jurisdictions were allowed to retain their own laws and
- t
' (

1979] ,.
privilege,!.;; This then. is the situation we see emerging .from 718
onward-a· sy§tem of non;system, if we may call· it that,·· of•
mented .legal jurisdictio$.: True, the Fuero Juzgo continued be
ili force, but in most cases only suppletOrily _to, or, at best, si.niUlta-.
neoW.Iy with, legislation by ·king and parliament· (the··. Cortes), CllS'
tom8, .Chaiteis, and privileges,- all of. a -lOcal character. This
then Is k:l).own as the -lOcal· period, ·or· 'more ·precisely,- the·
period of the fueros •.
The term fuero defies aCcurate definition, for it b.ears numerous.
anal9gous meanings. It can refer tO· -the great general codes; one ·
of which we have already seen-the Fuero · J uzgo. But it also reo
ferred to "uses or customs, kiCal laws; privileges, exemptions; or
franchises authorized by public power . to . diverse classes or dis-
tl;icts."19 It is in this sense that the development _-of_ the jueros
produced- so much diversitY and confusion. These- local fueros •ire-
present legislation caused bY an extreme and· unnatural condition
of affairs, growing out of the unsettled times, and were a. necessity_
at that period to obtain· the support of different in the
great work of the reconquest. "20
In this confusing period of legal development, one institution
took root in Spaui, as in other parts of medieval Europe as well-
primogeniture (mayorazgo). This institution developed . in Cal,"o-
lingian · France of the 8tli. and. 9th centuries and found its way tO
Christian Spain. Verr briefly, the historical development of· pri-
mog!!lliture is as follows: the- breakdown of the Roman Empire and
. later the threat of Islam made it neceasacy fllr m<!n to provide for
their own defense. And so ·they devised a kind of relationship, called
"vasSalage," in which a man pledged militaey service tO another.
This other, -in return for the service and as a means of
it,' gave the vassal a special grant of· land, called the "benefice."
·_Ceremony grew around this mutual • bond: the vassal voWing un-
failing loyalty in an oath of "fealty." Eventually a special term
eame intO use to designate this military. bEjllefice-2-it came·tO be called-
a "fief" or its Latinized version "feodum," whe:D.ce comes our "feu ..
dal!' This system of feudalism or sub-infeudation became general in e
medieval Europe-as the only practical means of mutual protection .
and welfare. A fief then ·
was land held in. return f<lr milita;y S9rvice, b11t, becaUSl!
governmental jurisdiction was included, it was also an
19 W A.I!l'ON, ·op. cit., p. 66.
20 W Aii.roN', op. cit., p. 68.
.•-' '•
office. [Governmental jurisdiction because if the land W!\8
tO provide the economic support for military service, the
holder of the fief-the vassal-had to have control over
. the working the land]. And this is a principal
re!\Son why fiefs came tO be. handed down in_t;lct ·tO eldest .
--- . sons.-For'-though land eoUld lle divided,"lm. office eould""" ,_
not: This custi:nil ·.;c_prk;i;gerufure, which neither of ....
Roman nor Gerinan origin, was dictated by practical neces-
sities of the eighth and ninth centuries.
Thris it was that in ·the various Spanish' kingdo'n;ts--'-notably ·the
-two main one8, LeOn-Castile_ and Catalufia-Arag6n-the practice of .
m4yorazgo ·frequently left the younger sons (segundones) with
nothing, setting these younger siblingir. on adventures in search of
fan:>e,. fortune, success, and lovely damsels and -making them the
· ·hetoes of miLny a picaresque tale and romantic noveL In any event,
the custOm Of primogeniture outlived its histOrical justification. It
remained long. after Europe acquired political stability, long after
the Muslims ceased tO be a threat. The custOm became exclusively
arid proPrietary in nature, be3.ring no at all
with military service ..
lt was carried ov_er tO the Philippines and has arisen as sn
issue in litigation. In at least one Philippine cas&'-Barretto v. ··
- its nature was· discussed. Quoting from the commenta-
tOr Gutierrez, the Philippine ·Supreme Court defined· a mayorazgo
thUS: "Ma/oratus est jus suCcedendi in boniS ea lege relictis ut in
. "familia ;:nteg"ra Perpetuo conse'I"Ventur, pi'oxi1noque cui'que primo-
geni.t6 ordine successivo- deferantur."?.a_ A mayorazgo, continued the
Court, partakes of two natures: on the one hand_ it is a ·usufruct,
since' the first-bol'!.l acquires only a dominium· utile. Who then is the
owner7 The descendants of the ,founder, il) all their infinite suc-
ceSsion; in Qther words; the family, as Jl<)inted out by Alcubilla and
E8crlche and confirmed by a Spanish Supreme Court decisi<>n of 5
'June 1872. On the other hand, it is also a trust· or ·fideicomiso,- a
particular kind of :Wil'll:e .. possessi>r, is simultaneously -a
trl!Stee aitd a usufructuary heir; · ·
It was not until 11 OctOber 1820 that a law was passed in
· Spain- the Statute of Civil Disentailments -· abolishing all m4-
yorazgos. And by the Royal Decree of 31 OctObOr 1863, this statute
21 C. HAYES; M .. BALDWIN & C. coLE, HISTORY OF .'EuRoPE 161 (1956).
22 50 PhiL -888 (1926). · - · · · . . ·
28 "A mayorazgo is the right to. succeed to the property left, upon the
cqndition that it be preserved perpetually intact, .i.n the. family and that it
be transmitted in the order of succession to each .
j .-·
L, 54
! of.
. of

E 5
... " ,.
was extended to tlie
March 1864.
overseas Provinces, ·taking . effect there on 1
But to go back to the observation made earlier, the period of'
·· the a time of great legal diversity; $!onsequently,
. it is not possibleo to .talk of Spanish law as such,.Law iii Spain was
1·egional, provincial, ·municipai, sectiOnal. TrUe, tlJ._ere were. efforts
at condification but sectionalism and jealously-held privileges p,re-
vented these. codes from becoming general in the . sense ·of the
word; · Ne'i'erthelesl!; it is important:· to· note that this· period also
saw the rise of the great Spanish Uiliversities witli faculties of law
devoted to the study of Justiniimean Roman Law as interpreted by
the Italian Glossators and Commentstors. One after the other, the
universities were estsblished: Palencia in ·1Z09, Salamanca ;,;, 1239,
Ikrida in 1300, Valladolid in 1346, Zaragoza in 1474, Toledo in 1499,
Sevilla in 1504, and Granada in 1537. Of these, Vaiia.dolid was par"
ticularly ill)portant for it became the center of Roman. law $l;udies.
This great reception of the Roman law was to assure the predomi-
nance of the Roman law tradition in the peninSula, by influencing
the codes that were to be enacted.
The first such Code was the Fuero Viejo, originally intended
as a code of rights and privileges of the nobility. This code was
presented to Alfonso VIII in 1212. The king -was unwilling to pro-
mulgate it, seeing it as a means of further strengthening the po5i-·
tion of :the nobles. He therefore shilly-shallied but his successor,
Alfonso X, yielding to intense pressure, promulgated it in 1272. as
·the law of the nobility. Under Pedro I, eL Cruel, (1369-1379), amend-
ments were introduced inserting dispositions of a more general
as for example the setting of the age of 16 for will-mak-
But there were other codes more importsnt than the Fuero
Viejo, enacted in quick succession, thanks to the Vision' and Wisdoni.
of Alfonso X, el Sabio, of Castile who reigned 1252-1284. Pre-
saging the promulgation. of the Codes was the publication of an
encyclopedic treatise, called the Septenario. This work; begim by
Ferrumdo III (San Fernanda) and completed by Alfonso, was not,
however, intended to be a law and therefore is not a code, properly
so-called. In 1254-1255 came the first. of Alfonso's codes: ·the FV.ero
• .I_,
.. '.;
. '

- .
[Vox.. 54
Real, variously known. as ·FueTo de las Leyes; FueTO de! Libro, .Fuero
de la Corte, Fu...o. Castellano, Fu...o de CastUla, Libro de los Ganef.'
ios de CastiUa, and Flores de !as Leyes. The Fuero Real is divided
into 4 books, consisting of '72 titlei! and 545 laws. Only the third book
need d.etain 1\8 here,. siru;e the other hook$ deal with such disparate
_ _ materials !"' and political alfaira, Pl'Ol'edural law, and penal
•- - ·_ noteworthy civil-law feature<! of the Coile ·
.,.-._, ___ - __:_;,_ ... - . - - . . - . .
. :.
. '
A. General provii;ioi)S :
(1} Ignorance of the law is not allowed as an excuse.
· .. -..
.. ···- -· ---·· ---.-----
(2) Custom is not recognized as a source of law .
'B. The law of persona and :flmrliY:
.(l) Civil personality is acquired by. anyone -wno is baptized,
irrespeetiv.e of' length flf life--a marked departure from the lQ-day·
reqQirement of the Fuero J uzgo. ·
· '·(2l .A woman• over 30 did not need parental consent to get inar-
is, of course, if 'She could still find a groom. .
(3) The regime of the conjugal partnership of gains is further ..
regnlated by. the enumeration of the ·kinds of property iti.Cluded
( 4) Legitimation is provided for the first tim&--it takes place
either by subsequent marriage or by grace of the King. A requisite
leliitimation was that the. child Should be n.atural, although the
term· fwtural was not defined. It was generally understood, bQ'wever, ·
that" a natural child was one c.onceived by ·parents who, thoug)l ·.not.
married. to eseh other, suffered under no impediment to do so •. (This
is identic;al to
ur own ®neept.) · · · •·
. ; .·"
.c. The law of property;
(1) A'ccesidn natural is re®gnized. and regulated-something
not provitled for either by the Fuero J uzgo or local laws. The in-
stances of accesi6n natural were: a) formation of islands (borrowed·
·from the •Roman Jaw) ; b) change of river ronnie -(giving-ownerShip
o'f the abandoned bed. to. the owners of the adjacent lands propor-
tionately.:_this ·is the same rule in tlie SpaniSh Civil' Code and is
different from ours) ; c) fruits falling on adjacent estates could be
recovered by the tree owner within one day, after wliich period the
fruits became the property of the owner of the estate on which they
felL ..
><Cf. PHIL. CIVIL CODE, art. 681.
(;, 54



< • ., •. ,
_ ._(2) _ The .. elements · <>f .prescription ·-are -:!enumerated; "el ·-rcon•
tinuous .possession, b) ·lapse of the, required .period of •time; ·lmd c}
prescriptibi)ity of the thing, Neither good faith. nor just-title• is re-
quired. The period for. prescriptio11--was year •and : O!\e ; di>y _:as
against s(n:I)eone present, and thirty years as against some<i!le ab-
sent. · -: ···:-
. -_ (3) There :was a provision go:vei"Iiing party .. walis (ser.IIJ<iumlmi,---..._
-de medianerla), each co-miViief'Wng. obliged to pay the' :--
. constructiOlk lllld niaintenimce. Of the wall,
. .
' D. l'he'law deseent:
.... - ······· -. ·'
_. _ (1) The age for will-making .remained at 14.
·"".. . ' ' .
,_ (2) The portion reserv'ld for descendants was fixed· at 4/5 of
the estate, but 1/3 of the total estate was disposable as- J;>etterment,
or mejora. There is no proviSion granting .!egitimes to ascendants.
(3) Illegitimate cbildreil· other tluin natural received no suc-
cessional rights. 'c
· ( 4) ·Some ·causes ·unworthiness- to succeed _are.· given,' e;g-.
ldlling the testator. - ' ·
(5)' The eonce'pt_ of admiirlstrator or executor (oabezalei-os)' is
til this code. · · , ·
: . E. The ·law -of obligati<i'ns- and contracts : _
(1) 'i'he foli9wing contracts are regulll.ted.: sale, barter, lease,
. loan (both _mutuum and commodatum). dei>oslt, pledge, ,donationS.
and negotiorom · · · · · ·
• (a) It is interesting tq note that either party tO a contract of
sale may withdraw_· from the _contract as long as no_ .Rart of· th<>
rice has et been aid. . · · · · - · '· · · · · · ·
p . ,Y . p . . . . . . . . . ..
. - . .
.(3) Individuals with. descendants could donate ouly. up to 1/l>
of their estate; on the other hand, the ouly limitation imposed upon
those with no descendants .was that they could not donate-all their
property: such a uirlversal was declared to: be void.
'These are some of the features·of the·Fuero· Real It-was not;
to repeat, a code -of general application, as shown_ by the fact" that
. it was made applicable as primary law . in only some specified. towns
and there ouly one at a time-like Aguilar de Camp6Q, Sahagun,
V alladolid, Burgos .. What appea_rs, therefore, Is that this Code was
. . "25 Ct. PHIL. CIVIL Conm, art. 662.
Under Philippine· law, 'lt6gotiorum. gestio is a quasi-conttaet. Cj. PHIL.
CIVU. CODE, arts.,. 2144-2153. ·. . · ·· ·.·
·l' .

' '
. ... ·:
. .'i
. . ·
[VOL. 54
primary law in some towns {i.O. those which had no special fuem]
and only ·suppletory law in those· towns which had· a special fuera.
The Fuero Real was at one and the sanie time a. step forward and
a cause of greater diversity and confusion.
. · Ahou( yeai;"'r2&8 appearett-a collection_ of pro,Jsions called
the Esp&ulo, the second of Alfonso's cod"es. There has, however,
.· been much controversy about wheiJ!er or not it ever had legal force .
It seems more probable that the Esp&!ulo was proll!ulgated
.;,•..s.Jaw, but .&Jlrved rather. as a basis of the Partidas.
In any case, it need not concern us here, ·because the five books,
64 titles, and 657 laws of the Esp&ulo contain matters relati:ttg to
public law, procedural !&w; and ecclesiastiCal law.
The last, and, if not the greatest, certainly the most celebrated,
of Alfonso's ·codes. was the· Partidas, probably prepared in Seville ·
from June 1256 to August 1265 by a group of jurists 'tinder· the
personal-supervision of Alfonso himself. Dividi.d into seven parts or
books, and eontaining 2,479 laws under 182 titles, the work was
· origirtally called the Libro de las Leyes or Fuero de las Leyes, but
because of this fanciful division into seven hook,s, each one· b"'!ring a
letter of Alfonso's name; juristS of _the 14th century came. to call
it the Siete Partidas; and, in the Cortes of Segovia and AlcalA de
Henarea· in 1347 and 1348 respectively, it was officially called· the
Partidas ..
The Partidas are, to a certain extent, i,;fiuenced. by the JQCIII
laws arid customs of Castile, but the prepond.erant infiuence upoil
them comes from canon law and the Romari law of Justinian. In fact
the style and are ill conscious of the Pandects
and numerous sections contain literal translations of portions of
Justinian's el>des, with liberal infusions from the works of·the Ita.c
!ian glossators. · · ·
. As with the past Codes, the Partii!RS covered a vast varfety of
subjects. The first book, with 24 title8, treats of natural law;
tive laW, Custom, the ·cathOliC ·faith; the sacraments, and other ·reli-
gious ·matters regarding dogma ·and discipline. The second part,
which includes 31 titles;· deiils 'with public law. The third, consisting
of 32 titles, sets forth the organization of the judiciary and lays
.down the.rules of procedure, but th"e last 5 titles" govern ownerShip,
prescription, possession, and servitudes. The fourth book, composed
. -

of 27 titles, is devoted to civil' Jaw: proper, prinCipally family law:;
the last seven tit!;,., of this fourth book, how:ever, concern them-
selves with the feudal relationships between lord and vassal, inas-
ter and slave. The fifth part, with 15 titles,· is exclusively devoted
to the law of obligations and contracts. The sixth, with 19 titles,
governs ·succession, the custody of _and min9rity. The
in 24- titles, is · - -
! :_._ - . - . ------!'""--. •.
----Our interest is wnfined to the 5th and 6th' books and parts or
the 3rd .and 4th. As in the past codes some of the more -prominent
features may 'J?e mentjoned:
A. General provisions :
1) The principle of territoriality is preserved- all juridical
acta done within the realm, whether by natives or by foreigners,
are to be governed by the law of the land.
2) Ignorance of the law is admitted as an excuse for. peasants,
solcliers, and wom.en; ·
B. The law of persons and family:
1) The -minimum age for marriage is. that of .puberty ..
2) Legitimation occurs in th1·ee ways: a) subsequent mattiage; .
b) the will of the king, or c) the performance of some service· to'
the king. - · · .
3) Adoption- called porfijamiento- is completely Roman· in
derivatio:P.,. as to kind, as to requisites, and as to effects . .
4) The mother is given no share in the patria potestas; rather
(as in the Ronian law) it is granted to the ascendant of the highest
c. The law of property:
-1) Own-ership is acQ.uired by accession, prescriv:- ·
hereditary. succession.
2) The Roman-law rules on possession and servitudes-classi-.
lied into real and personal-are reproduced. . .
D .. ·The law of descent:··
1) lolany features of the Roman law of succession are borrowed,
like the necessity of instituting an heir and the legal impossibility
of dying partly testate an!!. partly intestate. .

; .
. '
:: .

_:· ( .
-... [VoL. j;4,
: , 2) ·Capacity to inherit from ascendants is denied sacrilegious, ·
adulterous, and .incestuous ·children -....all of whom are designated
forrtecino.s. -- . -- . ·- _
' . . . .
· ·· 3) ·The legitimary system undergoes drastic changes: from the ·
. 4/5. of the Fuero J117;go, the legitimes· of descendants were reduced·
to. oaither 1/2 or 1/8, depending· on the number of children.
--_-. ---
. -. 5l On the other hand, Jegitimes are granted to 3..cendantS.
... . . ' .
6) SubstitUtions are classified into: 'IJ'Idgar, pupuar, ejewplar,
and. fid.eicomisc£t:ia. .. ... ........ ·
7) Representation is ·m;>de to operate· ad infinitum in the. direct
descending line, and to the second degree in the ·collateral ·
. ' . 8) Succession ill the collateral line is allowed to the 4th.-degree;
in default of relatives within these degrees, the survivil!g_ spouse;
and in hiS or her default, the King. · ·
E. The law of obligations and contracts :
1) In its efforts to borrow from. the Roman law, the Partidas
changed the already simplified law on contract, which had generally
required only - the new Code emphasized fonn once ·_more,
a. change which .. Sanchez Roman .characterizes as "completamente
impuesio,· groSero, material, formuliJ.'rio, artificial, y capriclwso, qUe,
posterga e! e!emento espiritUal a Iii observancia de. puen1es ri.tuali-
dades ... " ..
2) Contracts are real or coruiensual_:_among the former
. are: mutuU-m, comnlodatum, depo&it, and pledge; Snd among' the
. latter: sale, lease, partnership, and agency. . . '
it is very probable Alfonso intended the :Partictas to be
truly general law· in his kingdom, to supplant the Fuero J ""go, the
Fuero Real and the local fueros, although it has been he might merely have intended tlie code as an ·encycloPedic
treatise .. Whatever his intentions may have. been, however, the fact
tliat for more than eight decades, the Partidas did not acquire the
of law: It was not until the Ordlnianiientri de· A!Ciila. de He-
nares, passed by the Cortes of name in 1348 the Partidas
were promulgated. This was in the reign of Alfonso XI, great-
grandson of Alfonso X. And even when the Partidas were finally
decreed into law, they were given only a lowly supplementary effect,
27 ucompletely arbitrary,. grOss, mate"ralistie, formalistic, artifjcial, eapri- .
cious, which subordinates· the spiritual element to tlie observance of puerile
1 SANCHEZ RoMAN, op. cit.-, p._ 305.


·--· -



' 27
after the decrees of the Cortes,. the Fuero :Real, aud the local fueros.
This suppletory role of the Partidas was again prOvided iu the
. - ·- . . ····- -· ,, .. -
sequent Laws of Toro. Genturies later, the order of preference or
p,relation was once .more down in Book III, Title II, Law III
of the N ovisillla :Recopilaci6n, relegating the l'artidas to a atill
low<ll" position· of the Noviliima and· the 'Nueva,
_ a.fti,r the Fuero ':Real; the Ftiero Viejo; the' Juzgo, and 'the
locar fuero;,. · · · ·· · · - , ·· · ·
Perhaps .the Partidas introduced top :Roman law .·too
abruptly. Or perhaps the forces.of decentralization, . .were•too strong:
What cannot be denied is that th:e 'iniluence of the Partidas was far·
greater thari their binding f(!tce as a legal would warrant.
Slipshod though their orga:irlzation' lllay have been according to lat.
terday they attracted the greatest arid _sttiily.
·Their encyclopedic treatment, as well as their obvious · scholarship,
assured · thebc Jastilig fuflue'nce. Moreover 1;hey expressed the· latest
-and by late;t we ,rilean thE. most cloSely :Roman, this
was an age that looked back tO. the of :Rome-trends in
juridical science; as it llourished in the. great universities of Europe.
In the words . of .a legal hisfuria!l.: ·
. Great praise· is due to the 13th century Spanish jurists
· ·who wrote the Partidas; for they produced. not only a
highly scientifie code of law, the. most notable of the age, ..
but also the .most complete treatise of jurisprudence yet
published. The Partidas 01<ercised enorrilous influence Oil
Spanish law other than Castilian, and lie at the basis of
the modern Spanish Code of 1889.
It is a. tribute fu. the fame of the Partidas that every student
of law has at .least heard of them-<>f th"l'l, rather than any other
Spanish . code. Their inlluenee on the legal systems of the countries
of the Hispanic world can hardly be overstressed.
A.round half a later (ca. 1310), during the reign of
Fernando IV there appeared a short work of cer:
tain jurists by one Qldrado de Ponte- which was styled
Leyes de Estilo. It consisted of 252 sections. called "!eyes" and some
of these sections had fu donations propter nuptias, ·coujugal
property, and prescription. It is more or less generally agreed. how-
ever, that this .work did have the force of law as such, rather
it was a kind of collection of Ol<Jilanafury notes and comments on the
"'-281 SHERMAN', -Op •. cit., pp. 2'18"-279.
. ,,·.
2il PlliLIPPINE LAW JOuRNAL [Voi.. 54
Fuero Real. Subsequently, some of the sections were incorporated
in the Novisima Recopilaci6n and thereby acquired the force of law.
We have earlier referred to the Ordenamiento de Alcilla de
that townin 1348, which
· Orderiiirnieiito or gav" suppletory legal foree .to the Paitidas, -
This Ordenamiento, however, did more than just recognize the
P!!rtidas. It was itself a collections of laws,- some Of which had
reference .tO eivil law, for·instailee:
(1) ,It emphasized .the spiritual aspect of contracts, that is to
Say the concurrence of _wills, playing doWn-more precisely, ·
ing-the element of.form; which had been stressed. bY the Partidas.
The OrdenamientO in fact went so far as to state "que valeclera
la obligaci6n, <.1 contrato que fueren {echo• en cualquier manera que
paresca que algu:no 88 quiso obl_igar a otro·, 6 tace.r ccm.trato con. il" .
(2) It provided for lesion in sales, lesion being held to exist
whim the inadequacy amounted to more than on.,..half of the price-
the right to rescind had to be exercised within 4 years.
(3) The taking of 'interest was absolutely prohibited----a d""-
. parture from ihe Fuero Real which allowed interest rates up to
75%. The penalty for the taking of interest was severe--:the for- .
feiture of one-half of the creditor's patrimony, and in case 9f reciw
divism, total forfeiture.
( 4) In successional law, two provisions were prominent: a) a
will could be executed with three witnesses and a court clerk, or
. five witnesses without -a· court clerkr or in certain stipulated cases,
three witnesses without a court clerk; b) in another departure from
the Partidas and. the Roman law; it was provided that a will need
not institute an heir in order to be valid, legacies and deviseS were
to be effective in any case; furthermore, mixed succession, i..e. par-
tial' testacy lind partial ;intestacy, was eipress!Y allowed.
Mter the Ordenamiento of Alcala de Henates, ,we are at last
in the fifteenth century-the century of Ferdinand and Isabella,
whose wedding got our story started. That wedding, if we recall;
took plaee in the autumn of 1469. The previous autumn, Isabella bad
been recognized heiress of Castile by its king, her half-brother, En-
. ' . . . . .
29 "Any obligation is valid, in whatever manner it was made by anyone
who should wish to another and· contract with him.". ,. :
··.- ..

"" 29

---"" --
- _ .. __

rique IV, popularly called el lmpot<mte. He had a daughter, Juana
by name, or- a purported daughter, for almo_st .no .one believed her
to be so, Enrique el Impotente, so it was claimed, was not.capable ,
of siring anyone, and so the unfortunate Juana was contemptuously
caJliid la Beltraneja, after her reputed father, a coUrtier· .. named .
B<ilttan de Ia Cueva, The ml!l'rlage of Isabe:tla to Ferdlixand-, hiioc.-:-
evel', so u}>Set-Enrlque ellmpotente that. he: withdrew hlsneognl-
_tion of his sister as ·heiress and acknowledged instead_ la
as the rightful successor. Not one to admit defeat, Isabella, up'on
Ent:iJiue's !il"!th in14H h_eysel:f 9.'!een Cas-·
tile, thus plunging . the kiilgdom into a bitter civil war. Ia. 1479,
Isabella triumphed and this indomitable woman was, beyond all
challeage, Queen;. lier rival la Beltraneja betaking herself to a con-
vent and _for the next .half-century dreaming ()I splendors that.
might have been by signing all her correspondence with the royal:
I, the Queen.
Ferdinand-of course was heir'to Aragon's throne. In 1480, .the
year after his wife emerged victorious in Castile; his father's. death
made him king of Aragon. At last Ferdinand and Isabe:tla were joint
sovereigns of Aragon and Castile, _and if. legally and technically,
these ·remained separate kiagdoms, for practical purposes .. theY
were one. They were Spain.
Almost as soon. as thiags were settled, husband and .wife tU:rned
their prodiirious energies to. the final stage . of the Reconquista.
Moorish Granads still stood, a sorry remnant. of the ·once vast ·Mus-
lim dominions in Iberia, but there it was, the Alhambra's crenellat-
ed red brick towers stiil glistening in the setting sun, an intolerable
reminder to their Most Catholic Majesties that S]lliin was not yet
wholly theirs. And so they marched in hattie, conquering and pilfug-
ing, u:1tii in the autumn of 1491 they stoOd at the very gates of the
cit:Y· of-. Granads. 'With an -army of 80,ooo· they could have· over-
whelmed the city, but no, this moment ·-was to be savored, after 800
years it was worth enjoying. They were. going to starve the city
into submission. :in two months, Boabdil, the Moorish chief, ·sued for
'peace and on the 6th .of January 1492, their. Most Catholic Majesties
rode- in triumph through the city's gates, in imperial pomp and
·pageantry,. their bright royal banners· fluttering arrogantly in the
breeze, and they were in the Alhambra:-:wbile on a nearby sum-
mit, outside the clty walls, a hill now ealled the Last Sigh o:i'.the
Moor-<!! Ultimo Suspiro del M0r.r:.-a vanquished· Boabdil gllinced
.for--the last time·at the Granada that was no longer his, eyes ·brim-
. ming with tears; while his wife Aixa scorned bim : "W' eep like a
woman," she .taunted,.ufor .what yQu could not defend like .a mall·."
.-__ '-
;. ·-
·. · i492-'-cthe year.<>f g1ozy .. The year of:the·Reconquista's comple-
tion.: The·year of Spain's rise aS a coioni:ll power; with the discoveey
of the:New World. The overseas expansion was .of course not to be
achieved in that year, ·but it·was the beginning. ··These two .Vents
· -internal consolid&tion .and external expansion-"-were to have iar•
: reaching< the @vclopment of si}amSh · and in a res!
· .sense Ferllinand- a)ld Isabella are the cenfral figurea on the borizoiL .
And··· Yet, glorious th0U:gh their.· reign Was,' their· immediate iD.fluence
. on·thls evolution.was minimal, .niairlfested perhaps only·in the
... comi>ilation;.ab.out .the. year :1484, of Dr .. Alfonso Dlaz de Montalvo, .
. .who· worked -Under -a · giVen .by theril. . This -work. ·is· Com:..
m•mly ··known ·as the Ordenarillento · de Montalvo.
This compilation of Montalvo ,_.. also ·called the Ordenani.ias
Reales de Mtmtal'i!IJ-'-Yfas really a collection of variotis ordinances
of ·the· Castilian. CorteS as well as roy:il. decrees, some of which dated
back:to AU:onso X, el SabiO. It ·is ·divided into 8 books, subdivided
into. 115 •titles, with a ·total of 1,133 laws. Only the fifth book, with
14 titles, contains .civil law provisions, some of which are .the fol"
lowiug.: ·
, , A. The law of persons and faJnily:
. (1) a· provision, co:iJ.stituting· a departure from· previous laws,
allowing the widow to contract mapiage duriug the year following
her husband's death; .
(2) a provision declaring conjugal the fruita ofseparate pro-
' '
(3) a .provision authoriaing the husband to dispose of conjugal
Property even without the wife's consent, provided that. it was not
with intent to prejudice her.
B.· The law of obligations and contracts :
(1) a provision that multiple or collective obligations are pre-
sumed juris tantum; to be joint rather than solidary-a solidary
obligation beiug held to exist only if it is expressly provided by the
It is disputed whether this compilation, as such, was decr-eed
as Jaw or whether it was just.a eolleetiorr of pre-existing statutes.
In any case, it did not help the already bewildering legal situation-
with all sorts of codeS, semi-codes, pseudo--codes, and municipal fue:-
. ,

,. '· .,. ,_ >.:: ._ '. • . .• ,. ,.,-
ros existing simultanoously; It was becoming abl\ridlrntly' .that
a systematic revision of the law was badly needed' ·. ; · ;''-"'·''"
' .
_..,. .... ..
. •, :_..; ..
In-1504; Isabillla.died:.andlier suceessor·iiy.right'wa8 her:oldest'"';:- --
surviving cbild J uana-,-J uana Ia Loca. · ·Ristorillns ·still debate· -
her: was-: sh.e really demented· or .. was she merely 'declared to be· so
\. .· aJ;t!l up,· a haplem; victim·. Of husband, ·father,. and .son1• There
'aie.fewer .. scenes in ..
;Loca at Tordesillas, dis<:onsolate over the dead ·body ·of her husband
Philip the Handsome, and forbidding his burial because a CarthusiaJ;t
monk had daDgled before.her the. hope of Phili.p•s.resurrection.
• . -r-. . . ' .. '
But Juana Ia Loca, mad or no, was Reina of Castile,
and in 1505 the Casti.lian Cortes was sUJnml>ned at Toro tO :proclaim
her .Queen and to ratify her father Ferdinand's title. tO the regency.
TinS Cortes also a piece of legiSlation passed by· a pre-
vious Com.s-that_of Toledo-:-in 1602, whieh had thitherto not biien
promulgated. It wis the promulgating Cortes that gave tbla iaw its
· name-the Leyes de Toro.
The Leyes de Toro con8lst of 83 laws, arrwged helter-skelter,
without any attempt at structural -org:i.nization. There are no divi- .
sions in books, or titles, or sections. It is a· free-wheeliJ;tg enumera-
tion. Ii:owever,- as far as the civil law is Concerned, the following
are some of. the salient features :
A. ·The law of persons and family:
_ (1) Juridical capacity is poSsessed by the "naturalmente n.aci-
do'' with the followiJ;tg requisites: a) the eln1d must be born alive;
·b) it.ll!ust survive at least 24hours; and c) it must'be baptized. If
_any of these requisites was absent, ·the· child was not "natriralmente
n.Scido';· but ., .
(2) Marriage was recognized as a cause 9f emancipation from
parental authority, and the usofruct of any adven:titious
Passed to the child from the time of the marriage.
. . . .. . ..
(3) Ail interesting feature of tbla legislation was the sp.-ealled
"ley de 6sculo"-if the marriage--did not materialize, the woman had
·the right to retain one-half of whatever the man had given her, tl
he had already kissed her.
' '
.(4) The .wife could .not renounce any inheritance .without the
·hUsband's consent. · .
(5) wife could neither contract nor go to court without
the husband's consent.
. (6) The wlJ.S m<ii.e mhiutely regulatetf,-"7arious
- provisions being- ·dewt<id therej;O. -- -
(7) Natural children were d..SUed as those born of parents
who, at the til!le of the clliid's conception or birth, could- hi>ve mar"
____ tieddaw.fli.lly._·and withonLdispansation. _ ' •. : - ..
B ... The law .Qf property:
. (1) A provision governs intern,Ption of prescri;tlve periods.
C. The law of descent:
( 1) · Peroons subject to the penalty of death were, unlike the
rule in the Partidl\s, allowed to make wills.
(2) 'i'he minimum age for will-making was .fixed at 14 for males
and 12 for femaleS.
(8) Legithnate ascendants were niade compulsory heirs in de-
fault of children or dascendants; as heirs these ascendants excluded
collatersl relatives of the decedent.
( 4) In default of desc<>lldants and. ascendants, brothers and
sisters inherited by intestacy; and -in. representation of· predeceased
brothers or- slster:i, nephews and niecoo inherited not-
per capita. · · · · · · ·
. (5) All Jqnds of children were excluded by legiti-
mate deScendants from the· succession. of ·the. mother, but in the ab-
sence. of legithnate dascendants, these illegitimates-whether na- ·
turaf or lipurioU&-Succeeded to the mother's ...tate to the exclusion ·
. of legitimate ascendants; on 'the other hand, the father and the m<>-
ther could each give illegitimate children of ail kinds 'legaciea for'
sup:l>Ort not exceeding on.:fifth of their respective estates, a
man without legitimate children could give a 'natural child any
amount he wished:
(6) Msjoras eould be given: either Iiy will or by contract--in -
addition to this, several other rules· governing mejorliS were laid
(7) MayortLZiJos- already an established.practice throug!iout
the land- .l:>ut theretofore unr.egulated in the Codes -· were them
_ an• -
tiO -
fOl .
- --
. . . . .. 83
D. The law of obligations and contracts:
. . ...
(1} Donations of the universali,ty ofthe donor's patrimony were
prohibited; e'len·if only present property was included
' . . . .
The ldlll's of Tol'l> were enac_ted in. an effort to 'clarify; explain .
- ___ and-reconi:Ai!, 1\t:\east in-pllrt;_existing.Jeg!slatlOn, which, as
-- tioned ea!'iil>r,- hail .:tallen into a state of uttei'-,-oonfusion. The lm-- -
- J)ortance !lf l,;ws is shown J:i; tlie faet l;hat they were ineon><>ra-
ted hi both the Nueva and the Nov[sima Recopllaci6n. .]3ut the pas-
sage of the Le;ii:es· de Toro· was a niere palllative remedy, in!ldequate
su!,'ely-for the Chaos;· More ref()rui was required.
As Siinehez·J!,oinAil. Points ()ut: ")A reforma de la legislacichf exigia
Ulgo mas oa.pital 1J deeisivo '11'6 solucitmis tra.ntitoriai . . :••• .
Ferdinand of Aragon died in 15i6; Juana Ia Loca survived until
· 1555, the r!glitful ·sovereign to the end of her But becaq.Se · ·.
of her or foisted-p(rvlter paased' to her eldest son,
Charles of Ghent. A historian has deseribed ·him, not too sYn>pathe-
tiealy, as ua gawky, u:nprepossessiilg' youth with· an 'absurdly pro-
noimced jaw • . . looking like an idiot . . • and suffering' from the
unforgivable defect of knowing no.· Castilian,"" thiS last because
he had been raised in the Netherlands. But whatever m8,y be said
about his jaw, he became the most powerful nian in Europe-· Dake
of Burgundy, King of Castile and LeOn, King of Arag6u; Count of
Barcelona, these were some of his titles; and most of alll)e was Holy
Roman Emperor - Charles the First of Spain and tl)e Fifth of the
Empire. He was an absentee king, st8,ying in _Spain only 16 years
out ·of his 39 yesrs as king. In J ailuary 1556, he abdicated the
throne, paesing the sceptre to his 29-yesr old !\On, J!'ei)P., IL
Philip was a ··different king altogether -= hard-working, atten-
(perbapa too attentive) to detail, contemptuolll! of 'the Reforma-
tiOii., and staunchly Spanish. He found himself JIOV!ri'elgu of a realm
on which the sun never set ___:_ an empire larger· than Europe, won·
· for hitn by- Cortes and Pizarro and the other an em- ·
pire that included, we may say, across wide ocean from the
vast silver mines of Potosi, a small output iii· tile. !tidies fittingly
named after him.
This king, Philip II, seeing the·grest and urgent need·for liw
reform, commissioned a minister of his Council, Juuned Bart9lome
... . ..
so "Law reform required something more drastic and decisive than tem·
po;mry solutions/' 1 SANCHEZ op; cit..._ pp.. 388-884.
31 ELLIOTT, IMPERIAL 1469-1716 144 (1976).
[VoL. 54!
L6pez de ArriE!ta, and, upbs>this. man's Bar-
to)oWP t!ri,s tasi-;. 9"t.J4 March 1567,
·r ·1 '·' .c · ." ··' ''w · · m:ur ated b' Hi Ma'e8ty .·under ·
the ,, 11!\. P,J;Q.. g .·. •. r., . .... }, .· .. ., ,, .....
the title.''Niieva"'Recoi>i'f'aei6n ·de las Ley.S 'de Espana.;" TliiS new
codl!l<Sa'aglfti·'!lii•iileorpdratii''antl unify· the diver8e
strilllds ·tifo". the
• ·:;Fri&ii·ReaEitlie tl(ii· Laws- ilf:.
'o'"-ior<l iih\i thi1'6tlrer·iaw!i; it arS<ilionb..ined i:oyar and li!gisJ
to' the tirile of its ptepariitionHt wa!i 'cmll- •
poil'eci &'! 'niiie' bool<S; 1n'2i40,titles, ·and lf,a91·1aw)i.·'rt 'the rutn book
'il'!id. a few :feat1!,e8 ·axe 'i!'.Jl'" " .
-...,-:.. ___ :--r--. ,_._ q,;-: :··:- · · . -·· , .. , -··!.;".:,;! ··-',J" ,_, __
. .• {l.) ·Husballds;. at, least 18· yearif of age, could. adntinil!ter.: tb.eil''
property and· -tha1f;· ·ot· .•.their·: :wives. . . . .:: ,. ·· · .. '- :, ,, .. ·. ·c·.c·· '·•':'·'·
(2) All asseta exi§!illg ;>t the time of the !lisolution of the tnaJ,'-
riage presumed ·Coiijugavst · · · ·
.. If the pllrpO;je 'a{ thiS compilation, • .;.,..; w tl)e
state of J;he law, 11-.dismal failur!'- Its OJ,'ganizatio'!i was sloppy,
itS illadE.ruate. its !lXPlllnatlons .unclea,. WorSt of all, it
retained.t!ie Orde' of· Prelation .. of the Ordinance of. Alcala and the
. . ·' ' .. . . . ' ..
Laws of Toro and thez'efore did not 'epeal tile eadie' laws. ·As ex.
Plaiued by a historian: .
.. : -:
The objeet of the Recopil;>ci6n was to clarify
.and render mOJ,'e i,;,telligible the. existing law. But the oilt-
COn>e did ,not 'ealize this purpose and was deplorable . , •
'." And .. because the Nueva Recopila<;i6n did not· ab,ogate
earlier. collections· :law, it became merely another sup-
plementacy compilation to the anterior codes, which ·
most of thei' autl)9rity and hsd iftill to be consulted.
The Nueva at best was but a partial codification. The an-
cient condition of confusion and div"'sity . . . still con-.
: tinued 0 0 ,as
. Indeed, not only . continued, but became worse, fo' on top of
a!Lthe pn•vious codes, we . had still .. another.· ·
-,- And Yet, in anOther. sense, the Nueva Recopilaci6n was an im-
portant development fo' ·it "wrui an. effort to codify Castilian law
and did contribute to its unification" and thus "it may be rega,ded
as orilaxking the comencement nf the movement to unify and codify
the law of
-32 cr. Fu-n.. OIVIL art. 160.
u op. cit., pp;
34 Ibid. · ·. ; '
he s
in 1-
the I .
of a
·---test. ..
th<! 1
of A
a bot
it "
Qf i


[s::-:· ..

·.:i ·,1:
Pl!illp II rul!'d Spail) at }he hclgh,t power; but per
h<} strai11ed the nation's ieS01111'es .beYO!ld the ilmit,. and his·deafu
in 1598, just a decade after the rout or" the l!lvincibie ArMada at
the of the Engllsh, marked the start o_f a _lqng dec14l,e.
(1598-1621}._Phifip rV ns2t-1665); and Charlea II called' the
Bewitchell (E! Hei:hiztidiJ] (16611'1700}, each .one we!lker tho.ii the
last, presided over a Spain that·was slowly slipping to the .Position
of a second-rate power. The Netherlands were first the Pro-
testant part,- 'then·the· Catholic-then-Sardinia; and. the Burgmi:c
dian possessions, and· Portugal By the end of the century, the pre-
ponderant power in Europe was clearly France, the France of Louis
XIV.. '
The death. in 1700 of Charles TI without an brotight to
th<! thro!le Philip. of Anjou, grandson of the Spauish Maria
Teresa, but grandson, toO, of Louis XIV. The Claim had .been con-
tested by the Archduke Charles of Austria but the Sun King's ma-
chinations· won the day. Thus at tlie qpening of the_ 18th centUry,
the Crown of Spain passed from Habsburg to Bourbon, when Philip
of Anjou became Philip V of Spain. .The War of the Spauish
waged from 1702 to 1711, failed tO diSlodge Philip from the
throne but succeeded' in weakening Spain further. However, the de-
cline was ·ariested, even under the succeeding BoUrbon
monarchs, though Spain never quite recovered the gl6ry . of the
16th century. .
The absolutism of the Bourbons bad the effect of · bringing
about the centralization .of Spain. In 1707, "the special statutes and
privileges of Ai-ag(\n and Valencia were abolished R!ld their place
taken by the lam and practices of Castile.,.. Cataluiia followed in
1716. These measures, however, except for Valencia, did not include
the abolition ·of the private, or civil, law. of these regions. Rather,
it was the public law thst was affected. So, fragmentation in
efvil law continued. And even in Castile itself,. what' was the state
o:f its ,civil .!aw.? .. .S!J:d eJiaos • \lPOn code,
,Jaw upon law, an utter babel of statutory provisions.
Towards the end of the 18th century, Cliar!es IV, wishing. some-
thing to be done about the legal situation, commissione!l J\l&n de la
Regtiera Valdelomar; a. jurist, to revise the Recopiiacl6n.
The work was submitted to the King in 1802, and on 15 July 1805,
35. CHAPMAN, op. cit., 429.
., .
. it was promulgat\!d under the title: "Novisima Recopilaci6n de las
L!>yes de Espana." It was structured along the. same Jines as the
Nueva, coliSisting .of 12 books with 340 . titles and 4,020 laws. The
civil Jaw l)ortion is found in Book X, with 24 titles.
. .. . . .
Wo!>l;h mentioning among the -
·renewiriS' a lease for:t.ine- year if notice to-
. .
vacate had been given prior to expiry date ;••
(2) the prohibition of subleases;
.... · .. .• ·(3}· the -adoption, as .. the- Jaw. on.-marriage, of the Tridentine
decree on this subj eet;
(4l the requirement of paternal consent: to marriages· of boys
below 25 .and girls ·below 23 {requisito necesario).
. .
The etforl fell far short - despite . the declaration that this
new compendium was to be applicable· to all Spain; "as ·far as pOs-
Sible" (whatever that mean). Much uf it was. a rehash of the Nueva,
and it was just one· more code on top ·of the rest. Sherma11. suc-
cin.ctly states the matter: ·
Although the · royal decree of Charles made the No-
vlsima Recopilaci6n superior to all earlier .Jaw, yet, ioas-
much as the Novlsima did not definitely repeal either the
N neva Recopilaci6n or the Partidas, ita effect was to make
the Novlsima merely a ·supplementary code or partial ccidi-
. ' fication. For it did not abrogate the order of the sources
of Castilian-Spanish law as .fixed in Ordena,;;iento of
Alcala and the Laws of Toro: lienee, what the Novlsima
Recopilaei6n actUally accomplished was to make SP3Jlish ·
law more qbscUre and- confUsing· than ever.u
We have adverted earlier to the vast territories acquired· by
Spain in the 16th centory. The famous Line of Demarcation, set
by Alexander VI in the Bull inter Caetera of 4 1\!:ay 1493, ran
troinnorlli to soutii..106.1eaglies we8to:i'tite AZores. Ali lands east
of this line were assigned to Portugal; all lands west, to Spain.
The Treaty of Tordesillas, concluded •in 1499, moved the line 270
degrees further west. This Treaty gave Brazil to the Portuguese;
it wa8 not certain whether it also gave tli..,;: the Molucc:!s, tbe rich
islands of spice. Nevertheless, in 1529, Charles V, for a. consideration
of 350,000 ducatS, renounced ail Spanisli claims to the Moluccas · -·
36 Cf. PHIL. CIVIL coDE, art. 1S70 ..
871 op. cit., p. 288.
..;: :
.it I
. 54


a in.

but not to the islands just north of them, the Philippines. And so
we fell under Spanish sovereignty.
Administratively, the immense Spanish domains were divided
into jurisGietions of varying sizes, of which the two main ones were
the viceroyalty of 'Mexico (New Spain) and the ·viceroyalty of Peru.
-=•rhe a gQbwnaCicm. jplder the Vice-royalty of --:_ ·· - -
" :._.. ____ . _-- __ :-- . -- '"--'"···-
The bureaucracy of course started with the monarch. In govern-
ing the colonies he was assisted first by the Casa de Contratacidn, or
Board of Trade, established in 1503 and headquartered in Seville,
·-··and· then;·from-1524;-by-·tJre--t:onsejo··de-las·Indias; the· Royal-· and·-:·
Supreme Council of the Indies. Tbe Consej o, composed chiefly of
lawyers, ''had supreme jurisdiction [i.e. supreme, but subject to
. the King ultimatelY] over a:IJ the colonies; a:IJ the Jaws :and ·ordi- of viceroys and governors were subject to ita approval, and ·
it had power to frame Jaw1:1.

Thus, th:e government, as well as
the various affairs of the colonies; was rim by the vicerOy . or gov-
ernor, but subject to a vast assortment ()f decrees - variously called
cedulas, decretos, -resolucion.e8, oTdenamiBntos, reglamentos, -prag-
maticas, etc. -issued hY the .King or bythe Consejo in his name.
These" decrees, collected, abstraCted, explaitied, and· coordinated, :were-
put together in what Horacio de Ia CoSta call8 "surely , the most
impressive body of coloJ!ial legislation in history" - the Recopilaci6n
de Leyes didos Reinos de. las Indias. In addition of course, applying
1n a suppletory capacity, were the_ numerous codes arid l.aWs Which
we touched . upon. ·
A Royal Ordinance, made in 1530, established an order of prefer-
ence of the laws to govern the colonies:
Ordenamos y mandamos que en todos Joo. casos, ne-
- gocios y pleitos en que no estuviere decidido ni declarado
lo que se debe proveer por 1M !eyes de esj;a Recopilacion, 6.
por cedulas, provisiones u ordenanzas dadas y no revoca- .
das para las Indias, y las que por nuestro orden despoi-
cheren, se guarden las !eyes de nuestro reino de . Castilla
confol'Iile ala 'de Tofu,"-asi·en··cuanto··a,la .SuStancia, :i-eso-·
lbci6n, · y decision de los casos, negocios y pleitos,, como 'if
Ia forma y· orden· de sustanciar.
".(We ordain and decree that in all cailses, suits, and litigations
in which tlie laws of this compilation do not provide for the manner
of their deeision, and ·no· such provisio:D. is found in speei8.! .enact-
. . .. . ... · . . .
. . . .
De la Costa, Outpost of As{i oo··THE PHILIPPINES-.15 ··(1S67) ..
39 W AL'XON', op. cit., p. 520.
-- -----

merits passed for the Indies and still unrepealed; or those which
may hereafter be. so enacted, that then the laws of this our King-
dom-of Castile shall be followed, in conformity with the law of Toro,
both with respect to the procedure to be followed in such cases,
· suits,. and litigations; and with respect to the decision of the same
-· _<!ll· the _mf.Jits.'') · - ·
- c ·· ;''' _This d.;.,tee of'cioso was later ine<irperated. into the;'-Recopila-
ci6n de la<r Leyes de las Indias as laws 1. & 2, title 1, book 2. It
is tO be noted that, after the ·special enactments specifically directed

fusing situation indeed.
For the Philippines then, a&_ fgr the otlier colonies,- the order
of applicatij>n was_ roughly thus:_ (1) j;he_Iatest•laws enact,<:d for
the eolonies and decreed therein, (2) the R_ec;opiiliei(in de Ia'! Indjl\8;
(3) the Novisima; (4) the Nueva; {5). j;he Leyes de Toro-; (6) the
royal ordinances of Castile; (7) ·tlje OrdenaiUienl:Q de Alcala·; (8)
the J,]zgo; (9) the Parlidas.. · · · ·
.. ·, ·'··'-
Since a minllillli number of special decrees concerned "civil- law,
and virtt1ally no provisions of a civil law nature were found in· the
Recopiiaci6n de las .lndias, the supplementary, laws ·were 'frequently
· apJ?lied, as witness the_ abimdant references thereto in the Philip-
pine Supreme Court decisions. The Pa:rtidas for instance, have been
cited and applied hi matters as disparate as bigamous marriages ••
and lands of the public The successional rights of Chil-
<lren, ·to take another example, were, before the Civil Code of 1889,
governed bY the' Laws of Toro. •• Neither time nor space. permit.:
a more detailed discussion-that would be matter -for another lec-
But we have an idea of how chaotic it- must _have been. Sini-
baldo de Mas, the Spanish diplomat and economist, writing in 1842,
has the folowing remarks to make about the !ega! situation hi the
Philippines:. ·
The Leyes de Indias, ·complied in. 1754;· and. all the
previous decrees . and royal orders before that time still
rule in Filipinas, in addition: tO the decrees and edicts of
governor-general. Of all this there is. nothing, or _very
Uttle, 'prfnted. The advocates generally know the laws in
force by . tradition "'ld ))earsay, but when they need ·any .
40 Sy Joe Lieng v._ Sy Quia,'16 Phil.lB7 (1910).
41 Ker v. ·cauden, s· Phil .. 732 · ·
<>Jayme v. Gamboa, 75 PhiL 479 (1945).
-. '
. _c_ --
in 11
its D
of ·F
. 'atte:.
of tJ
'··; '
ot tJ

. C6d1

. ·';""";":""-

[.,, 54
. It
. '


i979] · SPANISH.•
,. • of. the laww.;they ·have to·iookc • hou"" of soriie ·.·
friend, or if, not that;. in .. the,c'llecretacy!o;. effice· of the- '
whence very frequent!y;cit.Jta&"tlisappeaTed;
or in the off!Cl!• of tlie fiscal>'• or' that..ofdhe intendant; .. · . ,
because some orders .are •communicated ·by: -[the· rnini$try
.of]_ grace. :.and .iustiee, · !>thets ·bY;. J;h,e :tri!&SUI"Y or. i?Y": .
. <ltbfu<-ininistriei, ':He'who• no orAs 'neW" iri _tl>,e
•ignor11Iit 'of the rulea. ,qr bas not th<f .··
means. of acquiring :Besi\1® .. so ,far":;s .. t)ley_, are nQt "·
ov.ertllrown .. by the Ley'"' de. India.s, the of .tile Siete :·
··. ,: · ., ... Fartidas-have .as--!Ilnch-fer<:l>-As do--the-lateSt Jtecopilacl.6n c
. . . ' ..... .,,.. ' . . ,, ; ,,
· · .. {de las Indias], J!.o""\n.Iaw, ra¥;al law, and, il!
all.the confuseQ, !Ilass, of. the_ Spl!J.liow.,g9d!'B·
it is a vast. sea in whiCh are found . abin)Jiait.iJy the resQUr- .
.ces :_neC.,.,.acy:. to nux .up matters and: StultifY the :'
of just\.;.,_.. . ' . . . . ' ..
i.' .: THE FINAL S'l;AGE-·,·
' .Shiillhldo ife M:iS' Report was published'iidS43;' the Novlsitna;
· in 18ott Sixteen yearli before the Nirmiina; the itriiat revoiution had
broken_out"tn Fr:inee, and the as.part of
. its ineasrires to· sweep away the cineien r6gimi., plissed a law in 1792
ilireeting This was a salutary stepi coli'sldeiing Voltaire's
• • ' - f. , • • ; ' •• • • - •
eomment that in France, a traveller· Changed his law more often
than hls horse. The turbulilnee of the uphi!a:"ai;' "however; .prevei:.ted
codification; it 'wiis not until Napoleon'Bl>naparte; Who caini! to
power m J;liat this:Work was aehleved}Meeting hi the Chat.eau
· of F<intamebleiiu, a eorilmission head&! 'bY'' tWo distiniu;shed·
. :ver.; Pi>:tiiiliii 'and' Trorichet; but \VhtiSe .. s'essioits 'Wi!re:- frequently
by the- First. Consul hiinSelf; woiifed'' on a· lilivii ·Code,
whiCh was :PromUlgated in 1805. T<> "this iiay; it ;A: the Givii Code
·:of the' oldeiot hi !"'fstence. 'rliat' Stet example' for
. many' countrll!s· in EU:rope,' Spain'iriclnded. · ., '' . ' · -, ' · '' '
. ' ., . .. . -· .
' • . •! \ ··-·:. •' . . '
_ , ,How d!difil!alc9di1i.cation come about in,$-pain? The aftennath
'If 1:jl& NapgleOJ:lic-oceuPation WaJ! constjtutioi>aUW
under, • liberal_Gonstjtl>tio]l,.of_ Cii.diz Recognizing.,t)ie
. grave ne<id for Jaw refonn, provided: "rin solo
. ,Q6digo ci'IJ\I, "!!!-to los dOmM#o,B. M ¥..onaxgtlfp,
Even before. tlte !ldoption. of the ponStitution, ,tl;e Cortes of
. ·, -,_ . . .... ' ... , . - ' .. ,._,. ",• ' -·· . - -···-- .....
· · « Sinihaldo- Ya:s, · [11./0'r'f11.6 sobr6 el d6 las· Islall. ··FUifnJ&dti en.
·36- 8i" THE··PHILIPPm:E lsLANDS:. 300-301
. '"-"One QivJl ,Code· alone in . .all .tlle territ!)J'iQS:. un.der._the
Spanish CrOWii;" · ·· · · .1 '• -. -- ·• •· • · •
.·, ,
_- """
-. •'
on 5 February 1811; approved a resolution· of Deputy Espiga y Ga-
dea to effect, as• soon as the ·codification of an. the major
branches·· of SpaJtish law,· Due to ·the return of Ferdinand VII in
1814 and the qpheavals that followed, that proposal came to nothing.
]lut the hope bebirid it r@lahied alive -· · and on 19 August 1843
a .royal. decree constitute<l a genertil de 06digos, .
'ly diVided into two sections w diStribute the work. On 8 May '.ltml,
the Commission submitted 'a draft of a Civil Code, a
preliminary title and 3 books, .containillli" a total of 1,992 articles.
The first. book was on Per.Ons; the second, on Property and. Owner-
.. $Iifp;-a,;a-tne -tli1rd;on flle·maes·or .Ae(irilring· OWrierShip. (C"on:: ·. ·
tracts were' given as one of such modes.) Dissatisfaction with this
draft, as well as deep-seated opposition from the regions, again
caused the project to ·be pigeoriholed, althoUgh there were effusions
of gratitude .and praise for the. dedication and induStry of the Com-
During the next decades, h.owever, the passage of laws -
. .
special in scope but general in application.-.mellowed somewhat the
unfavorable· psychological climate. and made. it easier to· revive ef-
forts to codify the civil law .. Among sueh 1aws enacted .were the
Law; the .Notarial Law, the Law of Waters, on
on the Civil Registry, etc, At length, on 2 February 1880, another
royal decree called. for codification, and this time ·the · comp<>sition
·of. the. Qode Commission was trans-regional, with rilembei-s repro,.
senting dataluiia, · Arag6n, Galicia, Navarre, and the other regions.
Working on the Project of 1851 as a point of departure, the Com-
mission held conferences . and hearings and exerted efforts . to re-
oo,l;;iie tlte laws of the ·fuero!L In 1881 a proyecto de Qasef!
-an outline of balles or fundamental points-was submitted.· to the
Senate, and in 1881, the draft of the firSt two .books-on persons
and on pi-oPerty. The ·work, was. suspended again, owing
to SQme unfavorable· political developments. llut momentum had been
gained, and· three Yeais.later, the Minister of Justice presented ·a
proposed ley de JJ<i8e8-fundamental points on which the Civil Code
was t<>be baSed; ·totio.ilfrig ii iil'immber.:.C:i:O the which, how-
ever, due to irresolution· and its dissolution, failed to decree it into
Jaw. But on 11 May 1888, it became ·law by royal fiat. The ·draf( of
the Code havini been completed by ihe ·code Commission, · .a ·royal
decree of 6 October. 1888 ordained the publication thereof. ·On 11
itwas.deereed tiult·the would. take effect
1 :M:a)i orthatyear, brit it was aetually on 24 July 1!1\!9 th,.t.·the
definitive text of the Code was promulgated. Spafn had a Civil Code ..

. ···---ta-
. rt-

L. 54
I in
- , .
to a
Jon;. ·


ons. ·



o of

1979] .
. It was composed of a prellmiriacy. title with .16 arti!!les, ami
four boGks subdivided inro 41 titles ai:td- -further subdiviMd ; infu
clmpters and sections and articles. Tbe fiJ;"St book is entitled: De l(zs.
PersOMB, (PersonS) ; the seeond, De. los Bienes, de la Propiedad, 'Y
, de 8us '!nd its Modifieatioils}.;-
the third, De -los Dijerentes modos-de Adquinr l<t Propiedad, (:Dif-
ferent ways of Acquiring and the fourth, De l(zs Obli-
gricion,es 'Y Contratas, (Obligations and Contracts)_- The articles to-
- .tal- It Js .. cleadJr .... the ... product. of-the .evolutionary proCess of
Spanish law over the. centuries, with borrowings froni the French
Code thrown in for good measure. It .is ·the child of a Jiving tralii-·
- We need not go intD. the qqeStion of how effectively and to wh;t
degree the new Code -superseded fora! law-tl).at would be of in-
terest only to the Spanish people. What does interest us is how the
new: Gode came· to the· Philippines.
One week after the pub_lication of the official text of the Code, .a·
royal decree, dated 31 July 1889, was issued by the Queen Regent
Marfa Cristina,_ in·. the name of ·her soi:t, King Alfonso XIII. This
decree extended the Code to the Islanda of Cuba, Puerto Rico, and
the Philippines, to take effect twenty days after its publication in
tlle ·official neWspapers of· the same - "a los veinte dUis ·siguientes
a su. publicacidn en los periodicos oficiales de las Islas.u This decree
received ·the c-Umplase of the governor-general on 12. September 1889,
and the text of the Code wa8 published .in the Gaceta Manila, the
colony's official publication, on 17 November 1889. It therefore bee
came effective in the Philippines on 7th J;Jecember 1889--the 20tlt
Wiy· ·after its· publication, as held by Mijares "· Nery;'" or on :stli
Deeemher-,--the 2ll!t day; if we follow Benedicta "· de Ia Ram<L••
. '
On 31 December 1889 an order was published in. the Gaceta de
Manila under the. riame of Governor-General Weyler. It
. •' . .
By direction of her Majesty's Gnvemment, ·until fur-
-·ther order, titles 4 and 12 of the Civil Code, extended to
these Islands by royal decree July 31 Jasti published
in the Gazette of this city on the 17th of N QVember last; are
suspended in _this Archipelago.
45 3 Phil195, 199 (1903).
"3 Phil. 34, 36 (19.03).
: ' .. ·
, ..
.. ;--,
.. -,

·.- ';. f _::;;
i ,. •. ;-
--. •-'

·', '
'. -.
'i'he proper authorities will issue the necessary or-
to the end that in lieu of the two so suspenged .
f9rmer -law in. .._.- .· ·
·. This order will be i:Onnnuirlcated <>nd published. ·
. _,-, - .-·" c =;- -·· -c- ,
about weYief's-order. -First, was
there really a directive from Madrid to suspend these· two titles?,
'Tlte ,case of Benedicta 1/. de" !a Rama -tells us th<>t, accor.ding··to 'the
_ .... • pn:b, ·
Hshed in the Gaceta -de Madrid and- no copy of any sqch deeree·.was
obtainable in any :government office. -1.'7 SAnchez Roman, however,
states th<>t, "aecordirig to reports which merit a certain amount of
,Credit," what probably happened was th<>t the colonial government
Jssuoo the order of susliei.sion after :i:o'niiultii!g the co!Oiiial office. ••
J\il<!reover, rt well-known that a royal deeree did _not take effect in
the· eoloni_es automatically; it needed the c1impla/i6 'of the governor
or viceroy. So, ·Wey!er could be said to be merely withholillng the
cum1Jlase on the. two titles referred to. But the s.econd question was:
which title 4 and which title 12? The . Code,. ·as we know, contains
·f6tir books. Bopks I,. II, and IV all contain a title: 4, and Books I
alid IV bave a title 12. However,. by a procesa of elimination .and
. by reason of hiatorical !l,lltecedents, .it. "\"as generally accepted th<>t
the. meant titles 4 and 12 of Book I. Title 4, covering. Articles
42 to 107, is the.title on marriage; title12, froni Article 325 to 332,
op the registry. of civil status. · ·
Title 12 was suppresse.d probably because· ·there was ·no
officer as a municipal judge who could .take charge of .the. re-
giStry ... A!ld title 4,' probably because -of wbat sanchez Roman in-
tfig,nngly refers to as the· opposition ·of ."cerlain ·class.
'We riote th<>t the ne\v Code r.Cognked. two forms of marriage..::..tlie
. canpnical and the civiJ. Because of t)le suspension of title 4, the
oitli: form' of allowed in .tlie islands continued tO be the .
canonical, under the decree of Philip ii of i2 July 1564•• making
the decree.of the Council-of-Trent on marriage the law of the State.
The "Decretum ·de. Reformatione .Matrimonii''. (Decree -Concerning·
the Reform of Matrimony), was passed by the Council of Trent at
its 24th· session,- on u, November. 15S3. It contained the law of· the
Church oli marriage. ·
•73 PhiL 37 (1903).
-1.8 Ibid.
-4.93 Phil. 37 (1903),-citing 2 SANCHEZ RoMAN, op. cit., p.-64,
60 In the N ovisima., law title I, book I.
.t.." 54
ilJll>- -·
aerit ·

<a I
:ate ..
t at
And so it was that, with the exception of two titles,
Code of Spain became law in the Philippines. The rest of -story
we know-the Revolution of 1896, just seven years after the Code ·
· was brought here;_ the American regime, during which the Code,
being· of a. non-pOlitical nature, continued to b.- in force; and the.
· establishment of the Republie,_soon after. which, on 20 MarCh 1947,
Presid£l't Roms issqea, Exeeiitive Orderc-N<>: 48,-ci..!Jijlg' for· the
frariring of a Philipplne Civil Code. The work was begun" by. the Code
Comrirission on 8 May 1947, the draft subriritted to .Congress as
}{ouse Bill No. 2118; enacted as Republic Act No .. 386 oil 18 June
··1949, ·took Code Comririssicil! Report· --- · · -- --------
tells us that 57 percent of th¢ 2,270 articles of the new Code are
by· verbatim tr.i.nslation or . by adaptation-from
the Spartish Code. That should give us an idea of the exterit of the
Sp;mish infiuence on :our code, especially if we_ COilf!ider that this
57 percent ·tq the moo¢ basic provisions, like the ·Jaw· oil
persons, the Jaw On· property/on succession; and On obligations.
. - . .
Three decades have passed. since the framing of this _coda· Very
soon, experts 'may be called to work on a project of recO'difi:calion.
That should. be a wise and welcome thing, for a reviSion is very
much in order. But · if we are tO produce worthwhile,
a bala,nce has" to be struck Mtween __ contemporary relevance and
.a historical" sense, The first is attained :by an awareness .:.of. the '
complex needs and· challengeR of present:day Philippine ·society, as
- well as the social and cultural coordinates of the Filipino. ail he
journeys with mixed feelings of hope and fear towards .. 21st .
century. But, lest contemporaneity become as ephemeral as
headlines, timely today, "stale tomorrow, the second element=a· sense
of history-is no less important. And that can be gained only by
looking back, for wisdom and depth, to the experience and the tra-
dition of a legal system that is already our heritage.
BERTR:A1W; ·:ANn· PETRIE, TaE--HisTORY "2d"·ed. NeVT-·
York, The Macmillan Co., 1952. 432 p. ·
1898. Cleveland, 1903-1909. 55 v. -
MODERN LAw.· New York, Lawyers Co-operative Publishing Co., 1938. 748·p.
CASTRO, FEDERico DE. Di:ucao Civu.·nE- ESPANA. 2d .. ed .. Madrid, Grtfieas .:Tejario,
1949. 2v. .
HISTORY .OF SPAIN. New Y.ork, The Free Press, HnS.
559 p.