TITLE. V.

COMPENDIUM OF THE HISTORY OF ROYAL LAW OF SPAIN, FROM THE INSTITUTES OF ALVAREZ.

[TRANSLATION.]

As this compendium has no other object than to give to beginners some idea of our codes of law, I will only make in it a brief relation of what our authors are agreed in, without mixing in the prolix disputes which this matter generally gives rise to.

Although there are some who have wished to discover the laws by which the first founders of Spain were governed before its invasion by the Carthagenians, yet it is necessary to confess that we have nothing certain upon this subject. The most probable appears to be that they had no laws written, and that they undoubtedly were governed by those of custom, and by arbitrary decrees founded in equity and justice. It is believed that the Carthagenians would begin at least by introducing theirs into the provinces which they ruled; but even this conjecture is not altogether fixed, if we consider the short time that their government lasted, which was a little more than two hundred years, during which they were agitated with continual wars.

To the Carthagenians succeeded the Romans in the sway over Spain, and these, there is no doubt, as soon as they completed the conquest of all the provinces introduced in them their language, customs, and legislation.

In the decadence of the Roman empire of the west, Spain passed under the dominion of different barbarous nations of the north, viz. the Goths, Vandals, Alans, the Suevi, and Silingi: all of these disputed the dominion a long time among themselves, until the Goths, by the ruin or banishment of all the others, remained sole masters of Spain, which happened about the year 412 of Jesus Christ. These Goths, in the beginning of their reign, permitted the Spaniards to continue the use of the Roman laws, to which, it appears, they were accustomed, and from time to time went on establishing others. The first who gave them in writing was the King Eurico, who died in the year 483. To these were added others by his successors, and chiefly by Leovigeldo, who mended and regulated those which existed, taking away those which were superfluous, and adding others necessary.

The first code of Gothic laws is the famous one published in the 12th century in Latin, by the title of Liber Judicum, also called Fuero de los Juices ó Fuero Juzgo, (Judge's Statutes;) and this is held as the fountain or origin of the laws of Spain. The work is divided into twelve books, also divided into chapters, and its laws are composed of edicts of divers Gothic kings, of various councils of Toledo, and

other enactments of unknown origin. There are doubts as regards the author, some giving in to Sisenando, some to Chindasvindo, and others to Recesvinto, who all flourished in the seventh century.

After the entry of the Arabs into Spain, which happened in the year 714, in which the Gothic monarchy was destroyed, the Gothic laws continued to govern for many years in the provinces which were preserved from the Moors, and in those which were got back, which were governed by them and by the general customs of the nation. The division of the provinces which were conquered from the Moors, and the difference which, in time, was remarked in many things of the individual government of each, were the cause of the variety of codes which were then established. In Castile was established, at the end of the 10th century and commencement of the 11th, by the Count Sancho Garcia, the Fuero called Viejo de Castilla, (old statutes of Castile,) the laws of which are, after those of the Fuero Juzgo, the fundamental ones of the crown of Castile, separate from those of Leon. Don Alonzo VII, in the Cortes of Najera of 1128, augmented and amended it, publishing, besides various laws with respect to the nobles. To these were afterwards annexed several usages and customs of Castile, and different fazañas or sentences pronounced in the tribunals of the kingdom, all which governed up to the reign of Alonzo XI, who desired the preference to be given to the code which he published and regulated in the Cortes of Alcala in the year 1348, known by the name of Ordenamiento Real de Alcala, (royal regulations of Alcala.) Lastly, the King Don Pedro, in the Cortes of Valladolid of 1351, mended and regulated the Fuero de Castilla in the form in which it has arrived to our times. This code is also known by the names of Fuero de los Hijosdalgos, (statutes of gentlemen,) Fuero de Burgos, (statutes of Burgos,) and Fuero de los Fazañas, (statutes of the sentences,) ancient laws and customs of Spain.

In the kingdom of Leon, King Alonzo V, in the general Cortes which he held in the city of that name in the year 1020, gave the statute which he called of Leon, composed of laws established in that assembly of the government of that city and kingdom, including Gallicia and the part of Portugal then conquered, all which continued to be governed by them until the publication of the code called Fuero Real; and although the aforesaid two statutes of Castile and Leon were established in both these kingdoms, the laws of the Fuero Juzgo continued also to be observed in the provinces more or less respectively, in every thing relating to common law, until with time the observance of them began to cool, principally in Old Castile: but if here their vigor decayed, it was recovered throughout the whole of New Castile, and the provinces which continued to be conquered from the period of the reign of Alonzo VI, up to the beginning of that of Alonzo the Wise, which monarchs gave the laws of this code to the conquered people for their government in all that belonged to common law.

King Alonzo X, called the Wise, being desirous of annulling the VOL. I.-47

statutes of population and conquest and the general ones of Castile and Leon, in order to avoid the confusion and even complication of such a multitude of different laws in each province, ordained and published, in the year 1255, the Fuero Real, known also by the names of the Book of the Councils of Castile, Satute of the Laws, and Statute of the Court, because by it were chiefly decided the processes in the tribunals of the court, and he ordered that the laws therein should be the general and only ones in all his dominions; but the nobles and the people, particularly of Castile, finding out that their ancient statutes and privileges were by it destroyed, they made their complaint, and recovered them in time of the same Don Alonzo, when among these the observance of the Fuero Real ceased, but it was generally in use in Estremadura, Algarva, Andalusia, kingdom of Murcia, &c. The same complaint was made by the councils of the cities and towns of the crown of Leon in the time of the discords of the Infante Don Sancho with his father the same Don Alonzo, when the re-establishment of the laws of the statutes of Leon and of the Fuero Juzgo was agreed upon among other things.

The Fuero Real was not without many defects, and on this account, and for its greater clearness and intelligence, it became necessary to form the explanations called Leyes de Estilo (laws of the age) to the number of 252, by the authority of the same King Don Alonzo, of his son Don Sancho, and of Don Fernando el Emplazado, as it is declared in the prologue. These were published at the end of the 13th century or beginning of the 14th, and some of them are found inserted in the New Recopilation.

After the Fuero Real, follows the celebrated code of the Partidas. The prologue to this work informs us that the King Don Alonzo the Wise undertook it by order of his father, Fernando, in the year 1251, and fourth of his reign, and that he finished it in seven years afterwards. These laws were not in practice until the time of Alonzo XI, (about the year 1348,) who, by the law 1, of the 28th chapter of his ordonance of Alcala, published and gave them force after they were mended and corrected by him to his satisfaction. The same appears in law 3, tit. 1, book 2, of the New Recopilation. It is considered as certain that the cause of such a great delay in the publication of this code was the disturbances, wars, and other most important matters which occurred in the reign of Don Alonzo the Wise and the two following.

The Partidas was composed in a great measure of the laws of Roman codes, of chapters from the canonical law, and authorities of the holy fathers. It is evident that they likewise contain many ancient laws of the kingdom, and that the customs and statutes of the nation were consulted, the desire being to issue a perfect legal code, and peculiar to our Spain. But this so important object was not attained completely.

Don Alonzo XI, desirous that all his dominions should be governed

by one and the same laws, and in view of what he had promulgated in the Cortes of the royal city of Segovia, formed in the Cortes of Alcala, in the year 134S, the Ordenamiento de Leyes (ordinance of laws), known by this name, ordering that these should govern in his dominions in preference to the ancient codes; and, after them, those of the municipal statutes of the cities, and those of the parties after he had corrected them; and this was renewed by Enrique II, in the Cortes of Toro, in the year 1369, and by Queen Donna Juana, in the law first of Toro, which is found inserted in the New Recopilation. Of this code, almost all the laws passed, in like manner, into that Recopilation, either entire or with some slight alteration.

From the laws of this code, and those which were promulgated by the kings, the successors from Don Alonzo XI, down to the Catholic kings, was formed that which we know by the title of Royal Ordinances of Castile, and also that called Royal Ordinance. It is composed of various laws, some loose, some found in the Fuero Real, Leyes de Estilo, and Ordinance of Alcala, and is divided into eighty books. It is thought that its author, Alonzo Montalvo, undertook this work by order of Fernando and Isabella, as he himself says in his prologue: but there never was a law issued to put in force this compilation, and, therefore, its laws have no other than the merit they have acquired in the original.

After the collections just related, followed another which is called the New Recopilation. This was concluded and published in the year 1567, in two volumes comprehending nine books, having in them the laws which appeared in various pamphlets, and others which were found loose. In the later editions made in the years 1581, '92 and '98, 1640, 1723 and 1745, there were added many laws, established in the intermediate time from one edition to another; so that, in that of 1745, there was added a third volume, in which, under the name of Autos Acordados del Consejo, (acts agreed upon in council,) were included more than 500 pragmaticas, cedulas, decrees, orders, declarations and resolutions of the king issued up to that year; all which were distributed in the same order of titles and books contained in those of the volumes of the recopilated laws. With the augmentation of 26 laws and 12 decrees, appeared other three editions in the years 1772, 1775 and 1777; the public being promised, in another volume separate, by way of supplement, the great number of cedulas and royal decrees, and acts agreed upon since the year 1745.

Latterly has been published another edition of the same Recopilation, not in the method and order of the old one, but in a new form; taking in the useful laws contained in the first, and adding more than 2,000 dispositions appertaining to them, from the year 1745 up to 1805. This collection, which is divided into 12 books, was approved and ordered to be observed, by King Charles VI, with the title of Novisima Recopilacion de las Leyes de España, by a royal

cedula of 15th July, 1805, which is found at the beginning of the work.

The epochs being known of the promulgation of all these codes, and the principle being established, that later laws destroy the former," the relative value will be known of all these parts of our legislation; and it will be seen by what laws judgment must be had in the various cases which occur. But in order to proceed in so important a matter according to the tenor of the laws, see the law 3, tit. 2, book 3, of that newest Recopilacion.

TITLE VI.

ORDENANZA DE INTENDANTES.

MOVED by the paternal affection which all my subjects deserve from me, even the most distant, and by the anxious desire with which, since my exaltation to the throne, I have endeavored to equalise the government of the great empires which God has eommitted to me, and put in a state of order, happiness, and defence, my extended dominions of both Americas. I have resolved, after well-founded reports and mature deliberations, to establish in the kingdom of New Spain provincial intendants, and of the army, in order that, being clothed with authority, and having competent incomes, they may govern those settlements, and the inhabitants, in peace and justice, as far as is entrusted to them; and they are charged by this instruction, that they may take care of the polity, and collect together the lawful interests of my royal exchequer, with the integrity, zeal, and vigilance, which are prescribed by the wise laws of the Indies, and the two royal ordinances which my august father and King, Don Ferdinand VI, published 4th July, 1718, and 13th October, 1749; which prudent and just rules I wish to be observed exactly by the intendants of said kingdom, with the amplifications and restrictions which will be found explained in the articles of this ordinance and instruction.

ART. 1, Orders the division of that empire into twelve intendancies by name, and continues, "each of these intendancies will comprehend the jurisdictions, territories, and districts, which will be respectively assigned to them at the end of this instruction, which instruction will be delivered to the new intendants which I may elect, with the corresponding titles, (which, for the present, will be despatched by the secretary of state, and universal affairs of the Indies;) for I reserve always to myself to name, and for the time I think proper, for these employments, persons of accredited zeal, integrity, intelligence and good conduct, seeing that in them I shall rest from my