Spanish Civil Code Origins

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Citation:
Ruben F. Balane, The Spanish Antecedents of the
Philippine Civil Code, 54 Phil. L.J. 1 (1979)
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THE SPANISH ANTECEDENTS OF
THE PHILIPPINE CIVIL CODE*
RUBEN F. BALANE**
On the morning of 19 October 1469, in a private residence in

Valladolid, more than a hundred miles northwest of Madrid as the
crow flies, a wedding took place. A love match, people later were
to proclaim. In its own way perhaps, it was-but only in its own
way, for the parties were practically strangers to each other, the
groom having met his bride for the first time only four days before
the ceremony. She made a lovely bride, 18 years old, tall and blue-
eyed and fair, with hair the color of copper, bespeaking her English
ancestry, for her great-grandfather was John of Gaunt, Duke of
Lancaster, later immortalized by Shakespeare in the play Richard
II. The groom, at 17 a year younger than she, had the darker good
looks of his Aragonese forbears.
There were some who opposed this marriage, among them the
bride's own brother, who would have preferred to marry her off
to the King of Portugal. But this bride had a mind of her own (as
many 18-year old girls have a mind of their own) and she had her
way, over her brother's objectives, despite even the canonical ob-
stacle that bride and groom were second cousins. To surmount this
obstacle, a papal bull of dispensation was presented but the document
was a forgery, concocted by the groom, his father, and the venerable
Archbishop of Toledo.
Despite the simplicity of the ceremony, it would not have taken

much prophetic vision to realize that this was a marriage of sur-
passing importance-to a country, to a continent, and to the world.
For the bride who stood, flushed and fair, before the altar was
Isabella, princess *of Castile and heiress to its throne; the groom
was Ferdinand, King of Sicily and heir to the throne of Arag6n.
Castilian and Aragonese-but both of the Royal House of Trasta-
mara. Trastamara was a Castilian house which for more than a
century had occupied the throne of Castile, but since 1410 it was
also the ruling house in Arag6n, in the -wake of civil disturbances
* Lecture delivered at the College of Law, University 6f the Philippines

on 5 January 1979, under the title "Background to a Code".
**Associate Professor of Law, University of the Philippines; Holder,
J. B. L. Reyes Professorial Chair in Civil Law.
PHILIPPINE LAW JOURNAL [VOL. 54
there over the succession to the childless Martin I. The Compromise

of Caspe ii, 1412 finally' extended recognition to 'Fernando de An-
tequera, son of Martin's sister, who became the first Trastamara
sovereign o Arag6n. The Ferdinand of our story was the grand-
son of Fernando de Antequera, and Isabella the granddaughter of
Fernando de Antequera's brother, Henry III of Castile. The mar-
riage of 19 October 1469 united these two branches of the same
family. It did more than that-it made possible, indeed inevitable,
the political unification of Spain, long fighting a bitter, if sporadic,
war of reconquest against the Muslim, Moor, a war which, in its
protracted course, had snatched Spain back from Islam to Chris-
tianity but had fragmented the land into numerous petty kingdoms.
That mariage, too, was to set a former weaver from Genoa by
the name of Cristoforo Colombo sailing beyond the Azores in search
of a westward route to the spice treasures of the Indies, only to stum-
ble upon a neW world instead. It was to dispatch in Columbus' wake
"another adventurer, a Portuguese seaman named Fernao de Magal-
haes, on yet another such expedition and thus effect the first cir-
cumnavigation of the globe, though Magalhaes himself was to perish
violently ,on the shore of a distant pagan isle called Mactan. And,
significantly for students of law, it was to make Spain the purveyor,
across one continent and along the fringes of another, of the oldest
legal tradition known to man. But all that was to be in the future.
We must begin from the beginning.
EARLY IBERIAN DEVELOPMENTS

The first major settlers of Spain were the Iberians, about whom
little is known, but historians tell us that they were probably related
to the ancient Assyrians and Chaldeans and came to Spain from
Asia through Northern Africa.' About twelve or thirteen centuries
before Christ, the Celts-a people of Indo-European stock-crossed
the Pyrenees from France and occupied what is now modern Galicia
and Portugal. Intermarriage between the Iberians and the Celts
eventually produced a mixed race called the Celtiberians, whose basic
social structure, like that of most primitive societies, was the family,
a collection of which formed the gens, a group of which, in turn,
formed the tribe. There is sufficient evidence that these Celtiberian
tribes had a fairly well-defined concept of property, of which some
was private, and some, communal.
The ,rise of the Phoenician city of Carthage in North Africa
brought the Iberian peninsula under Carthaginian influence, but
1 CHAPMAN, A HISTORY OF SPAIN 7-8 (1918).
1i9791 SPANISH ANTECEDENTS
not domination. The original interests of Carthage in the peninsula

were silver and commerce, but by the middle of the third century
before Christ, conquest of Iberia became essential to Carthage, for
across the Mediterranean, another city, called Rome, was also ex-
panding, and rival expansionist ambitions inevitably brought these
two great cities into bloody and terrible confrontations, known to
historians as the three Punic Wars. In 236 B.C., just six years after
the first of these wars, Hamilcar Barca of Carthage led his armies
into Spain and founded the city which to this day bears his name,
Barcelona. Hasdrubal, his son-in-law, who succeeded him upon his
death on the battlefield, established his capital at Cartagena (so
called because the Romans referred to it as Carthago Nova). Has-
drubal's successor was Hamilcar's son-Hannibal-undoubtedly the
greatest Carthaginian general of all. Hannibal's military exploits
are well known. But in the end, Rome was the stronger city, and
in 210 B.C. the great Roman general, Publius Cornelius Scipio, cap-
tured the city of Cartagena, pushed the Carthaginians across the
sea back to North Africa, and earned for himself the name Scipio
Africanus. Carthage itself was at last destroyed, and Spain passed
on to Roman sovereignty.
For the next six and a half centuries Spain was Roman ter-
ritory, indeed one of the most important Roman colonies. Admi-
nistratively, Spain was first divided by Scipio Africanus in 197
B.C. into two provinces: Hispania Ulterior (Farther Spain), west
of the River Ebro; and Hispania Citerior (Nearer Spain), east of
that river. Caesar Augustus, in 15 or 14 B.C., reorganized it into
three provinces: Baetica, Tarraconensis, and Lusitania. Finally, in
the third century of the Christian era, the Emperor DiTlotian con-
stituted Spain as one diocese under the prefecture of Gaul. Five
provinces in the peninsula and two others overseas composed the
diocese: Lusitania; Baetica; Galicia; Carthagenensis; Tarraconen-
sis; in North Africa, Mauritania Tingitana; and Balearica (the
Balearic islands). Romans in great numbers migrated to Spain, as
soldiers and as laborers to work in the mines. Roman cities were
founded, which to the present day still carry their Roman names
in corrupted or truncated forms, like Zaragoza (Caesarea Augusta),
Le6n (Urbs Septimae Legionis), Badajoz (Pax Augusta), Astorga
(Asturica Augusta), M6rida (Emerita Augusta), Braga (Bracara
Augusta), and so forth.
Through all the centuries of Roman rule, the history of His-

panie law is the history of Roman law. We shall not deal directly
with Roman legal history here because that would make the scope
of this paper too large. Moreover, the history of Roman law is too
well-known to relate here.
By the fourth century it was becoming clear that the magni-
ficence of Imperial Rome was not eternal, at least in respect of the
political structure. Whatever the causes for decline may have been
-for that is a large question that historians still debate today and
is certainly not within the scope of our inquiry-its external mani-
festation was the penetration into the Empire of the Germanic
tribes to the north. In migrations first imperceptible and peaceful,
then in floods and torrents, these hardly Nordic peoples-huge
primitive men and women, lured southward by the fertile fields
-and dazzling polity of the Empire, came and settled. To Roman
Spain came the Vandals, the Alans, and the Suevians, occupying
Galicia and the southern regions, leaving however the greater part
of the land under Roman sway. But in the fifth century the trickle
became a flood, pushed forward by pressure from a new and terrible
presence in the North: the Huns, thundering 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 these fierce
barbarians. The East Goths were overwhelmed and brought under
'subjection; the West Goths (Visigoths) fled southward across
the Danube, and at Adrianople, their cavalry crushed the Roman
infantry legions. These Visigoths under Alaric pursued their erratic
course, through 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 Suevians to the
west and northwest, displacing the Vandals who crossed over to
North Africa.
Thus did Spain become a Visigothic kingdom. 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 exposure to Roman ways and culture, and this is im-
portant to note, because when they finally reduced their laws to
writing the Roman influence was already marked. But it must be
stressed that the preponderant characteristic of Visigothic law was
Germanic, reflecting therefore their own tribal customs and
traditions. The Roman historian, Tacitus, writing about the customs
of these people, points out some interesting things as, for instance:
(1) Marriage was highly regarded, and monogamy a nearly
universal practice.
19791 SPANISH ANTECEDENTS
(2) Adultry was dealt with severely- ".. . el [marido], des-

puds de haberla cortado los cabellos en presencia de los parientes,
2
la echa desnuda de casa y la va azotando por todo el lugar".
(3) Wills were unknown to them,3 and, in default of children,
the brothers succeeded, and in their default the uncles on both
paternal and maternal sides. [This is intriguing because the parents
themselves seem to be omitted].
(4) Their hospitality seems to have been extraordinary: it was
considered inhuman to deny anyone admission into one's house;
every guest, even a stranger, must be served the best food 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
same hospitality.
(5) The taking of interest on loans was completely unknown
4
to them.
Other features of Visigothic customs may be mentioned:

(1) Members of the family were to render mutual aid and pro-
tection, and thus a personal offense was also a family offense.
(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 include the
jus vitae ac necis (in this respect making Visigothic custom surely
more humane than the Roman Law).5
But all this was customary law, unwritten law, and the Visi-
gothic rulers, their people now securely settled in Hispania,
growing increasingly appreciative of the refinements of civilization,
began thinking of putting their laws into more permanent form.
And thus we reach the first important stage in the evolution of the
Civil Law in Spain.
2"The husband, having cut off his wife's hair in the presence of rela-
tives, drives her naked out of the house and scourges her all over the place."
1 SANCHEZ ROMAN, ESTUDIOS DE DERECHO CivnL 143 (1899).
31t seems, however, that even here the Roman influence was felt early,
for other historians tell us that the Visigoths in Spain were familiar with
testamentary succession, men being allowed to make wills, provided they re-
served four-fifths for their descendants.
4 Vide, 1 SANCHEZ ROMAN, op. 'cit., pp. 141-143.
5 Vide, CHAPMAN, op. cit., p. 33.
THE CODE OF EURIC

Over a century ago, Benedictine monks of the monastery of St.
Germain, working on a palimpsest containing writings of St. Jero-
me, discovered beneath the surface of the manuscript traces of an
ancient document. An examination of the parchment was made by
scholars and they discovered that the palimsest contained some
chapters of the Visigothic Laws of Euric. These fragments were
published in 1847 under the jaw-breaking title: Reccaredi Visi-
gothorum Regis antiqua legum collectio. Ex membranis deletitiis
regiae Parisiensisbibliothecae restitutam adjecta vulgata legum Visi-
gothorum lectione.
The evidence from these fragments indicated that the docu-
ment was divided variously into chapters and titles - the document
was obviously a collection of laws. In fact it was the Code of Tolosa,
the oldest written Germanic law, probably promulgated (although
historians are not agreed on this) by Euric, a Visigothic king who
reigned from 466-484 A.D. Thus, this collection is more popularly
known as the Code of Euric. The discovered fragments contain chap-
ters 276 to 336 of the Code (except chapters 313 to 317, which are
missing) ; a few of these extant chapters are incomplete, and in parts,
completely illegible. Nevertheless, of what can be deciphered, chap-
ters 276 and 277 govern the division of lands between Visigoths
and Romans (i.e. the Romanized subject people) ; 278 to 285 are
entitled De commendatis vel commodatis; 286 to 304, De venditioni-
bus; 305 to 319, De donationibus; and 320 to 386, De successioni-
bus.6
Sinchez Romin observes that although the Germanic element
in the Code is not exclusive, it is predominant. The Roman element
can be discerned in the rules on purchase and sale, pledge, dona-
tion, loan, deposit, and testamentary succession, some of which con-
cepts were theretofore completely unknown to the Visigoths, and
7
some others, even contrary to the practices of the people.
It is important to realize, however, that the Code of Euric,
though promulgated by the conquering sovereign, was not intended
to be general law for all the inhabitants of Visigothic Spain; rather,
it was meant to apply only to the conquerors. It was, in other words,
personal, rather than territorial, law. The subjugated Romanized
inhabitants remained outside its pale, these subject people being
governed, with a good deal of confusion, by whatever remaining
6Vide, 1 SANVHEZ ROMAN, op. Cit., p. 149.
7Ibid.
1979] SPANISH ANTECEDENTS :7
traces of -Roman law still remained among them - until Euric's

son, Alaric II, decided to do something about it.
THE BREVIARY OF ALARIC -
This king -'Alaric II - formed a commission of Visigothic

scholars - and considering the early stage of their Romanization
at this point, we have to allow the term "scholar" a*certain latitude
of meaning- under the leadership of a count. named Goyaric, with.
the mission of formulating a body of laws for the conquered sub-
jects, on the basis of known Roman law. With the active collabora-
tion of some clergymen who assembled in the year,-506 in Atures
(modern-day Aire-sur-l'Adour in France), the draft of the Commis-
sion was presented to Alaric, who, at that city, decreed it- into law,
with the caveat that only such copies thereof as were signed by
the Chancellor, Anianus, were to be considered, authentic, hence the
alternative name Breviary of Anianus. It is knoWn by -various other
names: Lex Romana, Liber legum, Auctoritas Alarici regis, Lex Theo-
dosii, and Commonitorium.
This Code, coming as it did about a quarter' of 'a century be-
fore Justinian's Corpus, is based on ante-Justinian Roman law, con-
sisting of Imperial edicts and writings of Roman jurisconsults. Ex-
tant editions of the Code differ as to its contents; nevertheless, it
seems from the editions most widely acepted to be authentic, that it
contained much of what is found in the 16 books of the Theodosian
Code.8 It also contained some of the subsequent Novels, viz, of the
Emperors Theodosius, Valentinian III, Marcianus, Marjorean, and
Severus [statutes passed after the Theodosian Code but before Jus-
tinian); an epitome of the Institutes of' Gaius; th& Sententiae Re-
ceptae of Paulus; thirteen titles of the Gregorian Code;9 two titles
of the Hermogenian Code;1o and a short portion of Papinian's
Responsa.
8 In 439 A.D., the Emperor Theodosius II published in Constantinople an
official collection of imperial edicts from Constantine to his own time. This
collection, aptly called the Codex Theodosianus, became law not only in the
Eastern Empire but also in the Western Empire, having been. promulgated
there in the same year by the Emperor Valentinian III in Rome. The Goder
Theodosianus covers several branches of law: public, criminal, military,*
ecclesiatical, and civil.
9 This Code was compiled ca. 295 A.D., consisting of imperial statutes
from Hadrian to Diocletian (117-284 A.D.),: originally a private unofficial
work, but eventualy given official sanction by the Emperors Theodosius II and
and Valentinian III.
10 This was compiled sometime before 324 A.D., during the reign of
Constantine the Great, containing contemporary Imperial statutes, mostly
under Diocletian. Like the Gregorian, this was originally an unofficial com-
pilation, but subsequently officially recognized by Theodosius II and Valen-
tinian III.
The Code is in two parts: the text and the interpretation

presented separately, except. only in the part on the Institutes of
Gaius in which text and interpretation are integrated. A few of th(-
statutory texts, however, do not have a corresponding interpretative
exposition, where the compilers probably thought that none was ne-
cessary.
Thus it was that the legal system in early Visigothic Spain
was not, territorial, but personal - one law predominantly Ger-
manic, for the conqueror Goth and another, predominantly Roman,
for the conquered Romano-Iberian. This system, reminiscent of the
early days of Rome before the Twelve Tables, called by Spanish legal
historians "legislaci6n doble" or 'legislaci6n de castas" was per-
haps "anti-juridical", and it could also lead to confusion and injus-
tice as where the controversy was between a Goth and a native [in
which case Visigothic law was held to apply]. But it paved the
way for the consolidation under later monarchs. As Sinchez Roman
has observed:
. . .si la legislaci6n doble, 6 de castas, es en principio
altamente pelniciosa y antijuridica, y por tanto digna de
ser proscrita como sistema legislativo, tratfndose de la
6poca y las circunstancias por que entonces atravesaba
Espafia, es digna de aplauso por favorecer la conquista,
facilitando la dominaci6n goda en nuestro pals, a la vez
que ofrece un testimonio de respeto a la libertad personal
de las distintas razas encerradas en un mismo territorio, sin
mengua, empero, de la unidad politica. Fu6 ademfs l6gica
consecuencia de ]a tolerante conducta de gobierno, iniciada
por los primeros monarcas godos para con el pueblo ven-
cido.11
THE CODE OF JUSTINIAN

While the Visigoths were consolidating their rule, events of
far-reaching significance occurred in Constantinople. In 527 AD,
a peasant lad from Dacia (modern Rumania), Justinian by name,
ascended the imperial throne. He dreamed of recovering the lost
Western provinces and making the Mediterranean a Roman - or
11 ".. the system of double, or class, legislation is, as a rule, highly
undesirable and anti-juridical and, hence, should be rejected as a legal system.
And yet, considering the circumstances -of Spain's historical development
at the time, it was a desirable thing, inasmuch as it stabilized the Conquest
and facilitated the rule of the Goths. At the same time it was a manifestation
of respect for the personal liberty of the members of the different races living
in the same territory, with no sacrifice of political unity. It was, furthermore,
a logical result of the tolerance shown- by the early Gothic rulers in govern-
ing the conquered people." 1 SANCHEZ ROMAN, op. cit., p. 152.
19791 ° SPANISH ANTECEDENTS
perhaps the better term now is Byzantine - lake again. Nor did
he content himself with mere dreams, and so the imperial legions
were dispatched westward in a campaign of reconquest. They met
with temporary success and huge portions of the West, including
southern Spain, were won back. But that was no more than momen-
tary; what was won was quite quickly lost again. Justinian's lasting
achievement was not in the victories of his legions, but in the re-
construction of two enduring structures; one, the magnificent Ha-
gia Sophia - originally built by Constantine and burned in an
insurrection - even today it stands, the jewel of Istanbul; the
other, the great work of codification, which exists to this day,
worldwide in its influence, surely as durable as the Hagia Sophia
itself.
That this codification was achieved at all is a tribute to the
vision of this Emperor. The imperial commission for the work was
given on 15 December 530. On 16 December 533, the Digest was
published, and became law a fortnight later, followed by the Insti-
tutes, which took effect on 31 December of the same year, and then
the Codez, on 29 December of the following year. The Corpus Juis
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 the
recovered area in the south. Its influence in Spain came later, with
the rise of the universities and then, even later, with Napoleon
Bonaparte. But from hindsight we know that the work of Justinian
and his jurist Tribonian was of primary significance. One look at
the structure and content of our Civil Code will show how much we
owe to the Institutes of Justinian.
THE FUERO JUZGO

Meantime, in Spain, as we have mentioned earlier, consolida-
tion of Visigothic power was proceeding apace. During the reign
of Leovigild (573-586), this power was threatened from without and
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 tension arising from religious differences. The Hispano-Ro-
mans were orthodox Catholics, while the Visigoths were Arians.
The first threat - the external one - was solved by Leovigild and
his successors by military means. Within the space of 60 years,
the Byzantine and .Suevian territories were conquered and made a
part of Visigothic Spain. The religious problem was settled by Rec-
PHILIPPINE .LAW JOURNAL [VOL.. 64
cared, Leovigild's son, with his simple and canny decision of con-
verting to Catholicism - an example which was emulated by many
of the Visigoths. Thus by the third decade of the seventh century,
Visigothic rule over the peninsula was secure.
One thing now was left to be done - the harmonious resolu-
tion of the unwieldy system of legislaci6n doble. The obvious solu-
tion was the adoption of a law that would be common to both the
Visigoths and the Hispano-Romans. And indeed the time was ripe
for this undertaking, considering the increasing social interaction
between, as well as the religious unity of, conqueror and conquered.
This task of forging a uniform legal sytsem was achieved, by stages,
in the reign of four monarchs: Chindaswinth (640-650), Recces-
winth (650-672), Ervigius (680-687), and Egica (687-701). The
result was the first and, in many respects the greatest, medieval
compilation of law - the Fuero Juzgo, originally known under
various names: Codex legum, Liber Gothorum, Lex Visigothorum,
Liber judiciorum, Liber judicum, Forum Judicum. This last was
corrupted in the thirteenth century into the term Fuero Juzgo, by
which we know it today. It is a monumental achievement, con-
sisting of a preliminary title and 12 books containing 54 titles fur-
ther subdivided into 578 laws. Originally written in ecclesiastical
Latin and translated in the thirteenth century into Spanish, it was
law for all Spain - for conqueror and conquered.
Although only those parts dealing with civil law need detain
us here, let us look at the general structure of this vast Code:
1) The preliminary part is entitled De electione principum,
and concerns itself with the monarchy.
2) The first book, entitled De instrumentis legalibus, deals
with lawmaking.
3) The second book, entitled De negotiis causarum, mandates
the general application of the law throughout the kingdom, thus
making the drastic change from personal to territorial application.
4) The third book, De ordine conjugali, governs marriage.
5) The fourth, under the heading, De ordine naturali, treats
of family relationship and succession.
6) The fifth book, entitled De transactionibus, is the law on
contracts.
7) The sixth, seventh, and eighth books, respectively entitled,
De sceleribus et tormentis, De furtis et fallaciis, and De inlati&
violentiis et dannis, constitute the criminal law.
8) The ninth book, called De fugitivis et de refugientibus deals

with military deserters and ecclesiastical asylum.
9) The tenth book, under the title De divisionibus et annorum
temporibus atque limitibus, governs division of lands, leases, and
prescription.
10) The eleventh book, entitled De aegrotis atque mortuis et
transmarinis negotiatoribus, curiously lumps together rules govern-
ing physicians, the sick, cemetery violators (ghouls must have been
a problem in those days), and maritime commerce.
11) Finally, the twelfth book, called De removendis vressuris,
et omniumr haereticorum omninvodo sectis exstinctis, deals with a
variety of public matters, including the administration of justice
and, sad to say, a number of harsh provisions against the Jews.
It is important to note that the Fuero Juzgo was not a code
as we understand the term today, namely, a collection of laws on
one subject matter. It was rather a loose compilation of rules
relating to public law, criminal law, ecclesiastical law, mercantile
law, and civil law. Hence, only books 3, 4, 5, and 10 concern us
here.
Since the Fuero Juzgo is the first major compilation in a long
series, it is worthwhile to examine some of its prominent features,
grouping the relevant portions under our familiar divisions of: (1)
the law of persons and family; (2) the law of property; (3) the
law of descent or succession; and (4) the law of obligations and
contracts.
A. The law of persons and family:

(1) A major change reflecting the social forces at work towards
unity was the provision allowing intermarriages between Goths and
Hispano-Romans.
(2) Two kinds of persons are recognized - the natural or
physical, and the juridical, following the Roman law maxim that
not all human begins are persons (for slavery was recognized)
and not all persons are human beings.
(3) For a natural person to be considered legally born, he
must have lived for at least 10 days and been baptized.12
(4) The age of majority was 15 years.
(5) The following were the impediments to a valid marriage:
12 Cf. PHIL. CMIL CODE, art. 40.
(a) difference in status - i.e. between a freeman and a

slave;
(b) if the woman was older than the man;
(c) holy orders, from subdeacon up;
(d) relationship - to the seventh degree, computed in
the same way we do today;
(e) prior existing marriage;
(f) crimes against chastity, specifically abduction and
rape, the effect of which (and we would find this
strange)13 was to make it legally impossible for the
felon to marry the victim;
(g) the temporal impediment; i.e. one year following the
dissolution of the woman's previous marriage.
(6) There was no minimum age requirement for marriage -
anyone could marry who had reached the age of puberty (aptitud
para la procreaci6n).
(7) The prescribed ceremony for marriage is charmingly
described by Sdnchez Roman:
...la esposa iba cubierta con un velo, simbolo de su
virginidad; prestindose el consentimiento por los esposos
piblicamente, y siendo d continuaci6n bendecidos por el
sacerdote, y unidos por el didcono con una cinta blanca y
encarnada, en representaci6n del lazo matrimonial, por la
ligadura, y de ]a pureza y fecundidad, por los colores. 14
(8) The concept of conjugal property is clearly discernible
in the Fuero Juzgo, which recognizes as common property of the
spouses whatever is earned by the effort of both and divides such
property in proportion to the contribution of each one.
(9) Patriapotestas 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
patria potestas was not nearly as absolute or as fearsome as in
13 Under Philippine law, marriage between the offender and the victim
is not only allowed; it also extinguishes criminal liability. Art. 344, par. 4
of the Revised Penal Code provides: In cases of seduction, abduction, acts of
lasciviousness and rape, the marriage of the offender with the offended party
shall extinguish the criminal action or remit the penalty imposed upon him.
The provisions of this paragraph shall also be applicable to the co-principals,
accomplices and accessories after the fact of the above-mentioned crimes.
14 "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 the deacon with a white-and-red-cord, the cord symbolizing
the matrimonial tie, and the color signifying purity and fecundity." 1 SANCHEZ
ROMAN, op. cit., p. 186.
Roman law, the ivs necis being available only when either parent
caught the daughter in the act of carnal indulgence (in flagrante
delicto). The rights of infants, and even of the unborn, were scrupu-
lously protected (perhaps here we can learn something from these
semi-civilized Goths) : infanticide and abortion were punished either
by death, or, more leniently, by the gouging out of one's eyes; the
mother who procured an abortion was reduced to slavery.
(10) The mother exercised substitute parental authority in the
event of the father's death but this was lost if she remarried.
(11) A kind of adventitious property (similar to our Article
321) is recognized.
B. The law of property:

(1) The modes of acquiring ownership were: a) occupation;
b) accession; c) prescription; and d) succession. Occupation oc-
curred by conquest, hunting, and fishing. Accession, by building,
planting, and sowing (the same as our accesi6n industrial, except
that accession in our law is not a mode of acquiring ownership).
Prescription was either ordinary (for 30 years) or extraordinary
(for 50), 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.
(3) Servitudes were classified into personal and real, the lat-
ter referring to pasturelands.
C. The law of descent:

(1) Succession was either testamentary or intestate - the for-
mer occurred by virtue of an attested or a holographic will (an oral
declaration of testamentary intention being allowed only in a very
rare situation to which we need not advert here).15 Only freemen
could be witnesses (again except in one rare instance).
(2) The minimum age for making wills was 14, and 10 for those
in pe2iculo mortis.
(3) The reserved portion was large: 4/5 of the father's proper-
ty and 3/4 of the mother's, with a portion allowed as mejora, and
a preferential order of heirs.
(4) Disinheritance was limited to certain specified grounds.
15 Cf. Book II. Title V, Law 12, Fuero Juzgo.
(5) An order of intestate succession was established.

(6) In Book IV, Title II, law 6, we see the beginnings of the
reserva which later developed into the reserva troncal; this feature,
in the opinion of a commentator, was neither Roman nor Germanic,
but Celtiberian. 16 The development of this reserva is itself an in-
teresting study, but we have not the time to trace it here.
D. The law of obligations and contracts:

(1) Contractual capacity was acquired at the age of 14, in-
consistently with the provision making 15 the age of majority.
(2) Minority, insanity, slavery, and force or fear vitiated a con-
tract.
(3) The following contracts were regulated: a) sale; b) lease;
c) mutuum; d) commodatum; e) deposit; f) donation; g) mortgage;
and h) pledge (both of these last two being denominated penno).
These, in barest outline, are the salient provisions of the Fuero
Juzgo relating to civil law. The Code has been highly praised, and
its influence acclaimed. In the words of Walton, "This Code is per-
haps the most famous, the most important, and the most regular
and complete of all the bodies of law, formed after the fall of the
17
Roman Empire . . .,,
And Sherman has this to say:
The Fuero Juzgo is the first great medieval compila-
tion to combine systematically Roman and Teutonic law:
it contains not only ancient Gothic customs and many
edicts of the Visigothic kings, but it has incorporated also
considerable Canon law from the acts of ecclesiastical coun-
cils (referring here to the Councils of Toledo, a series
of national synods held by the Spanish Church) ; and much
of its law in inheritance, marriage, corporations, owner-
ship, prescription, and contracts is conformable to Roman
jurisprudence . . . Historically, the modern law of Spain
rests on the Fuero Juzgo. And the Visigothic Code is also
the parent law of all countries in America ever under
8
Spanish rule.'
And we may add, of the Philippines as well.
But the noontide of this Code was brief - perhaps two, per-
haps three, decades, perhaps even less. For in 711 AD came the
16 Vide, 1 SANCHEZ ROMAN, op. cit., p. 188.
17WALTON, THE CIVIL LAW IN SPAIN AND .SPANISH AMERICA 57 (1900).
181 SHERMAN, ROMAN LAW IN THE MODERN WORLD 270 (1937).
S19791 SPANISH ANTECEDENTS
eclipse, sudden, inexorable,, first on the banks of the Guadalete, and

then across the fear-struck' land, rode triumphant the warriors of
Tarik, the Moor.
THE MOORS AND THE RECONQUEST

They were Muslims, and they came from North Africa, fired
with the zeal of the new faith. Under Tarik, they landed, 12,000
strong, on the rock across the strait - and this. rock fortress has
forever borne his name, the hill of Tarik: Gebel-al-Tarik - Gibral-
tar. Then, at Guadelete, Roderic, the Visigothic king, fell. In seven
years it was over - at least for the moment - and Islam's Cres-
cent was supreme in Spain, save for scattered pockets of resistance
in the Pyrenees and the Cantabrian mountains.
For a time it looked as if all Christendom would fall. In 732
they were in France, but there the tide turned, there at Poitiers,
where the Moors were met in battle by Christendom's armies under
Charles Martel, the Frankish injor domus; there at Poiters, in
one of the most crucial encounters in history, called by historians
the Battle of Tours, the Muslim power was stopped, and the hope
of reconquest was born. It is a glorious tale, the campaign of re-
covery - the Reconquista - not a sustained war but a sporadic
drive, flaring up in periodic fits, now here, now there. But if the
campaign was spasmodic, the spirit that fired it was not. Never
would Christian Europe rest until the Moor had been cast back
across the sea. To this the flower of European chivalry consecrated
itself, in solemn vows made before a thousand altars, through the
clangor of a thousand battles, amid the cries of victory or defeat,
while Christendom hung breathless on the bravery of its young men
at arms. It is a splendid tale, gloriously told and gloriously remem-
bered. We hear it still, in the compelling cadence of epic - the glory
and the grandeur, the courage and the cruelty - of figures larger
than life, looming heroic on the embattled fields - the Cid Cam-.
peador, besieging the Moorish citadels, and Roland, lying wounded
unto death at the pass of Roncesvalles, "upon a steep hill, facing
Spain," and proferring his glove to God.
The story of the Reconquista will take us to the very end of
the 15th century, to Ferdinand and Isabella, the same ones whose
wedding served as the vantage point of this historical journey. An
unfolding drama lasting just under eight centuries - in the couse
of which Spain was to be profoundly affected.
Upon its conquest by the Moors, Spain (more precisely, the
Iberian Peninsula) was organized as an emirate under the Omay-
S16 PHILIPPINE LAW JOURNAL [VOL. 54
yad caliphate of Damascus. As a result of the passing of power

from the Omayyad to the Abbasid dynasty, which established itself
in Baghdad in the year 750, a young member of the deposed Omay-
yads, Abd-er-Rahman by name, fled to Spain, seized control over
the peninsula, and there established an independent emirate, setting
up a magnificent capital at C6rdoba, by the river Guadalquivir. In
the 10th century, one of his descendants, Abd-er-Rahman III, as-
sumed the title of caliph and his kingdom became known as the
Caliphate of C6rdoba.
As in the rest of the Muslim world, the primary source of
law in Moorish Spain was of course the Koran, which was sup-
plemented by the legislation of the caliphs. There was no such thing
as a formal code.
Now, the Muslims were not barbarians. They had come pos-
sessed of a civilization which was to have beneficent effects on Spain
and, ultimately, on Europe. It was this civilization which served as
a major vehicle for the rediscovery by Europe of the great classical
and Byzantine cultures. This civilization bequeathed to Spain pre-
cious legacies in the arts, architecture, literature, mathematics,
and the physical sciences-legacies 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 Visigothic Spain

except the mountain fastnesses of Asturias where the remnants of
the Visigothic nobility, clergy, and army established themselves.
They elected a Visigothic duke named Pelayo as their king. At
Cangas de Onis, he fixed his capital and, having organized his sub-
jects to resist the payment 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 Recon-
quista.
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 northwest. By 757 the frontier lay just south of the River
Duero. It was a fluid line, with a kind of no-man's-land separating
the outposts, but, owing to the lack of organization of the Christian
19791 SPANISH ANTECEDENTS '
forces, the line of demarcation never really went farther south than
the Guadarrama Mountains. Thus Arag6n and all of. central and
southern Spain remained Moorish for a good number of years.
The evacuation of Galicia and Le6n by the Moors united these
two regions with Asturias under a kingdom thenceforth to be called
the kingdom of Le6n, and in that realm, in the reign of Alfonso II,
el Casto, was discovered the purported tomb of the apostle James
the Greater-Santiago. The village became a shrine (Santiago de
Compostela), and the shrine an inspiration in the battles against
the Moors.
Meanwhile the Basques of Navarre were able to establish an
independent kingdom, and, about the same time, the Aragonese.
Catalufia, too, was snatched back from the Moors by the Frankish
kings between 785 and 811. Subject at first to the suzerainty of the
king of the Franks, Catalufia soon asserted and obtained its inde-
pendence under the preponderance of the Count of Barcelona. In
the tenth century, yet another kingdom arose: Castile, so called be-
cause of its numerous castles facing the Muslim frontier.
At the end of the first millennium, the kingdoms of Le6n, Na-
varre, Arag6n and Castile were momentarily united under Sancho
the Great of Navarro, who styled himself the "King of the Spains.'
It could have been a development of major significance, but for
the fact that Sancho undid it all by dividing, Leai-like, his dng-
doma among his children-an act which fragmented the realm once
again.
The breakdown of the Caliphate of C6rdoba in 1031 into petty
states, called taifas, was a fortunate event for the emerging Christ-
ian kingdoms. These minuscule enclaves, waging internecine strife,
fell easy prey to the Christian kings. But that expansion was slowed
down, though not stopped, in the last decade of the eleventh cen-
tury with the advent of a newly-arisen .Muslim power in Northwest
Africa, the Almoravides (religious men), whose emperor, Yusuf,
entered Spain, defeated Alfonso VI of Le6n in battle at Zalaca, near
Badajoz, and reunited the taifas into one Muslim kingdom again.
Not long after, however, the Almoravides, too, fell, victims of their
own dissipation, and Muslim. Spain once again disintegrated into
taifas, until 1146 when the Almohades (unitarians), a.sub-branch
of the Berber Moors, invaded the peninsula and reunited Muslim
Spain once more. But .it was a Muslim Spain that was steadily
shrinking before tie advance of the Christian. kingdoms. In 1085
Toledo fell and thenceforth became the- center of the Reconquista.
Soon after, Valencia was captured. .In 1164, Arag6n and Catalun-a
PHILIPPINE LAW JOURNAL [VOL.. 54
were united as a single..kingdom under one monarch, and the united

realm was ,called the kingdom of Arag6n, although .Catalufia was
actually the preponderant part. In central Spain, consolidation was
a more erratic affair, thanks to a succession of kings who alternately
united and divided the' kingdoms of Le6n and Castile. Nevertheless,
whether fighting separately or as one realm, Le6n and Castile stead-
ily inched southward, capturing Extremadura and in 1212, a union
of the forces of Le6n, Castile, Navarre, and the newly united king-
dom of Arag6n, won a great victory at Navas de Tolosa in Anda-
lucia itself-the southernmost' part of Spain. After this the Mus-
lims ceased to be a threat. They had retained their foothold on the
peninsula, to be sure, -in the small kingdom of Granada. But
after Navas de Tolosa, it was only a matter of time. Eighteen years
later, in 1230, Castile and Le6n were finally united into one king-
dom-that of Castile, and the Christian territories of Spain firmed
up. To the kingdom of Arag6n then went Arag6n proper, Catalufia,
and Valencia. To the kingdom of Castile went the two Castiles (Old
and New), Galicia, Le6n, Asturias, Extremadura, Murcia, and much
of Andalucia. Navarre had lapsed into a dependency of France
and Portugal had begun to develop along separate national lines.
As for the three Basque provinces of Alava, Vizcaya, and Guipfiz-
coa-they were for a time contested between Navarre and Castile.
But the Basques were never an easy people to subdue, so they were
left mainly to their own devises-and their unintelligible speech-
until by the 14th century all three of them were brought to the
sovereignty of Castile. Of course we know that, to this day, the
last has not been said of the Basques, but that is another story.
THE FUEROS
And so, what picture has emerged in Spain as the 13th century
runs its halfway course? We have two Christian kingdoms, each
composed of several regions, and the Moor confined to Granada.
The political situation is complex for, despite consolidation, the
former separate kingdoms retain a measure of autonomy.
And what of the legal situation?
The piecemeal reconquest of Spain and the resulting establish-
ment of numerous kingdoms, cities, and towns gave rise to a vast
diversity of laws and jurisdictions. Nor did consolidation resolve
this confusing situation, for in practically every case the unification
of territories under one sovereign did not produce a uniformity of
legal systems. What happened rather was that a political union
was created, some stronger and longer lasting than others, but
the several jurisdictions were allowed to retain their own laws and
19791 SPANISH ANTECEDENTS.
privileges. This then is the situation we see emerging from 718

onward-a sytem of non-system, if we may call it that, of frag-
mented legal jurisdictions. True, the Fuero Juzgo continued to be
in force, but in most cases only suppletorily to, or, at best, simulta-
neously with, legislation by king and parliament (the Cortes), cus-
toms, charters, and privileges, - all of a local character. This
period then is known as the local period, or more precisely, the
period of the fu-eros.
The term fuero defies accurate definition, for it bears numerous
analogous meanings. It can refer to the great general codes, one
of which we have already seen-the Fuero Juzgo. But it also re-
ferred to "uses or customs, local laws, privileges, exemptions, or
franchises authorized by public power to diverse classes or dis-
tricts."' 9 It is in this sense that the development of the fueros
produced so much diversity and confusion. These local fueros "re-
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 localities in the
great work of the reconquest."2 0
MAYORAZGO
In this confusing period of legal development, one institution
took root in Spain, as in other parts of medieval Europe as well-
primogeniture (mayorazgo). This institution developed in Caro-
lingian France of the 8th and 9th centuries and found its way to
Christian Spain. Very briefly, the historical development of pri-
mogeniture is as follows: the breakdown of the Roman Empire and
later the threat of Islam made it necessary for men to provide for
their own defense. And so they devised a kind of relationship, called
"vassalage," in which a man pledged military service to another.
This other, in return for the service and as a means of rendering
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
came into use to designate this military benefice-it came to be called
a "fief" or its Latinized version "feodum," whence comes our "feu-
dal." This system of feudalism or sub-infeudation became general in
medieval Europe-as the only practical means of mutual protection
and welfare. A fief then
was land held in return for military service, but, because
governmental jurisdiction was included, it was also an
19WALTON, op. cit., p. 66.
20WALTON' op. cit., p. 68.
office. [Governmental jurisdiction because if the land was

to provide the economic support for military service, the
holder of the fief-the vassal-had to have control over
the peasants working the land]. And this is a principal
reason why fiefs came to be handed down intact to eldest
sons. For though land could be divided, an office could
not. This custom of primogeniture, which was neither of
Roman nor German origin, was dictated by practical neces-
21
sities of the eighth and ninth centuries.
Thus it was that in the various Spanish kingdoms--notably the
two main ones, Le6n-Castile and Catalufia-Arag6n-the practice of
rnayorazgo frequently left the younger sons (segundones) with
nothing, setting these younger siblings on adventures in search of
fame, fortune, success, and lovely damsels and making them the
heroes of many 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
economic and proprietary in nature, bearing no connection at all
with military service.
It was carried over to the Philippines and has arisen as an
issue in litigation. In at least one Philippine case-Barretto v.
Tuason2 2 -its nature was discussed. Quoting from the commenta-
tor Guti~rrez, the Philippine Supreme Court defined a mayorazgo
thus: "Majoratus est jus succedendi in bonis ea lege relictis ut in
famili integr perpetuo conserventur, proximoque cuique primo-
genito ordine successivo deferantur."23 A mayorazgo, continued the
Court, partakes of two natures: on the one hand it is a usufruct,
since the first-born acquires only a dominiu utile. Who then is the
owner? The descendants of the founder, in all their infinite suc-
cession; in other words, the family, as pointed out by Alcubilla and
Escriche and confirmed by a Spanish Supreme Court decision of 5
June 1872. On the other hand, it is also a trust or fideicomiso, a
particular kind of trust, where the possessor is simultaneously a
trustee and a usufructuary heir.
It was not until 11 October 1820 that a law was passed in
Spain-the Statute of Civil Disentailments -abolishing all ma-
yorazgos. And by the Royal Decree of 31 October 1863, this statute
21 C. HAYES; M. BALDWIN & C. COLE, HISTORY OF EuROPE 161 (1956).
2250 Phil. 888 (1926).
="A mayorazgo is the right to succeed to the property left, upon the
condition that it be preserved perpetually intact in, the family and that it
be transmitted in the order of succession to each next first-born."
19791 1 SPANISH ANTECEDENTS
was extended to the overseas provinces, taking effect there on 1

March 1864.
THE UNIVERSITIES
But to go back to the observation made earlier, the period of
the Reconquista was a time of great legal diversity. Consequently,
it is not possible to talk of Spanish law as such. Law in Spain was
regional, provincial, municipal, sectional. True, there were efforts
at condification but sectionalism and jealously-held privileges pre-
vented these codes from becoming general in the true sense of the
word. Nevertheless, it is important to note that this period also
saw the rise of the great Spanish universities with faculties of law
devoted to the study of Justinianean Roman Law as interpreted by
the Italian Glossators and Commentators. One after the other, the
universities were established: Palencia in 1209, Salamanca in 1239,
Ldrida in 1300, Valladolid in 1346, Zaragoza in 1474, Toledo in 1499,
Sevilla in 1504, and Granada in 1537. Of these, Valladolid was par-
ticularly important for it became the center of Roman law studies.
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 FUERO VIEJO
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 posi-
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
character, as for example the setting of the age of 16 for will-mak-
ing.
THE FUERO REAL

But there were other codes more important than the Fuero
Viejo, enacted in quick succession, thanks to the vision and wisdom
of Alfonso X, el Sabio, of Castile who reigned from 1252-1284. Pre-
saging the promulgation of the Codes was the publication of an
encyclopedic treatise, called the -Septenario. This work, begun by
Fernando III (-San Fernando) 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 Fuero
Real, variously known as Fuero de las Leyes, Fuero del Libro, Fuero
de la Corte, Fuero Castellano, Fuero de Castilla, Libro de los Conoe-
jos de Castilla, and Flores de las Leyes. The Fuero Real is divided
into 4 books, consisting of 72 titles and 545 laws. Only the third book
need detain us here, since the other books deal with such disparate
materials as religious and political affairs, procedural law, and penal
law. Some of the noteworthy civil-law features of the Code are:
A. General provisions:
(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 persons and family:

(1) Civil personality is acquired by anyone who is baptized,
irrespective of length of life-a marked departure from the 10-day
requirement of the Fuero Juzgo.
(2) A woman over 30 did not need parental consent to get mar-
ried-that is, of course,, if she could still find a groom.
(3) The regime of the conjugal partnership of gains is further
regulated by the enumeration of the kinds of property included
therein.
(4) Legitimation is provided for the first time-it takes, place
either by subsequent marriage or by grace of the King. A requisite
of legitimation was that the child should be natural, although the
term naturalwas not defined. It was generally understood, however,
that a natural child was one conceived by parents who, though not
married to each other, suffered under no impediment to do so. (This
is identical to our own concept.)
C. The law of property:

(1) Accesi6n natural is recognized and regulated-something
not provided for either by the Fuero Juzgo or local laws. The in-
stances of accesi6n natural were: a) formation of islands (borrowed
from the Roman law); b) change of river course (giving ownership
of the abandoned bed to the owners of the adjacent lands propor-
tionately-this is the same rule in the 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 which' period the
fruits became the property of the owner of the estate on which they
fell.2 4
24 Cf. PH. CrviL CODE, art. 681.
*.(2) The elements of prescription are enumerated: a). con-

tinuous possession, b) lapse of the required period of time; and c)
prescriptibility of the thing. Neither good faith nor just title is re-
quired. The period for prescription was one year and one day as
against someone present, and thirty years as against someone ab-
sent.
(3) There was a provision governing party walls (servidumbre
de medianeiia), each co-owner being obliged to pay one-half of the
5
construction and maintenance of the wall
D. The law of descent:

(1) The age for will-making remained at 14.
(2) The portion reserved for descendants was fixed at 4/5 of
the estate, but 1/3 of the total estate was disposable as betterment,
or mejora. There is no provision granting legitimes to ascendants.
(3) Illegitimate children other than natural received no suc-
cessional rights.
(4) Some causes for unworthiness to succeed are given, e.g.
killing the testator.
(5) The concept of administrator or executor (cabezaleros) is
introduced in this code.
E. The law of obligations and contracts:

(1) The following contracts are regulated: sale, barter, lease,
loan (both mutuum and commodatum), deposit, pledge, donations.
guaranty, and negotiorum gestio.2 6
(2) It is interesting to note that either party to a contract of
sale may withdraw from the contract as long as no part of the
price has yet been paid.
(3) Individuals with descendants could donate only up to 1/5
of their estate; on the other hand, the only limitation imposed upon
those with no descendants was that they could not. donate all their
property: such a universal alienation 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 only one at a time-like Aguilar de. Camp6o, Sahagdn,
Valladolid, Burgos. What appears, therefore, is that this Code was
25 Cf. PHIL. CIVL CODE, art. 662.
26 Under Philippine law, negotiorurn gestio is a quasi-contract Cf. PHIL.
CrvIL CODE, arts. 2144-2153.
PHILIPPINE - LAW JOURNAL (VOL. 54
primary law in some towns '[i.e. those which had no special fuero]
and only suppletory law in those towns which had a special fuero.
The Fuero Real'was' at one and the same time a step forward and
a cause of greater diversity and confusion.
THE ESPECULO
About the year 1258 appeared a collection of provisions called
the Esp~culo, the second of Alfonso's codes. There has, however,
been much controversy about whether or not it ever had legal force.
It seems more probable that the Esp~culo was never promulgated
as law, but served rather as a basis of the Partidas.
In any case, it need not concern us here, because the five books,
54 titles, and 657 laws of the Esp6culo contain matters relating to
public law, procedural law, and ecclesiastical law.
THE PARTIDAS
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 under the
personal supervision of Alfonso himself. Divided into seven parts or
books, and containing 2,479 laws under 182 titles, the work was
originally called the Libro de las Leyes or Fuero de las Leyes, but
because of this fanciful division into seven books, each one bearing 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 Alcali de
Henares' in 1347 and 1348 respectively, it was officially called the
Partidas.
The Partidas are, to a certain extent, influenced by the local
laws and customs of Castile, but'the preponderant influence upon
them comes from canon law and the Romaxi law 6f Justinian. In fact
the style and structure are in conscious imitation of the Pandects
and numerous sections contain literal translations of portions of
Justinian's codes, with liberal infusions from the works of the Ita-
lian glossators.
As with the past Codes, the Partidas covered a vast variety of
subjects. The first book, with 24 titles, treats of natural law, posi-
tive law;" custom, the'Catholic faith, the sacraments, and other reli-
gious matters-'regarding dogma and discipline. The second part,
'which inclides -31 titles, deals -with public law. The third,- consisting
of 32 titles, sets forth the organization of the judiciary--id-lays
down the rules of.;procedure, but .the last 5. titles govern .ovnership,
prescription, possession, and servitudes. The -fourth book,- composed
19791 SPANISH'ANTECEDENTS
of 27 titles, is devoted to civil law proper, principally family law;

the last seven titles of this fourth book, however, concern them-
selves with the feudal relationships between lord and vassal, mas-
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 orphans, and minority. The
seventh book, in 24 titles, is the criminal law.
Our interest is confined to the 5th and 6th books and parts of
the 3rd and 4th. As in the past codes some of the more prominent
features may be mentioned:
A. General provisions:
1) The principle of territoriality is preserved-all juridical
acts 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,
soldiers, and women.
B. The law of persons and family:

1) The minimum age for marriage is that of puberty.
2) Legitimation occurs in three ways: a) subsequent marriage,
b) the will of the king, or t) the performance of some service to
the king.
3) Adoption - called porfliamiento- is completely Roman in
derivation, as to kind, as to requisites, and as to effects.
4) The mother is given no share in the ratq'ia potestas; rather
(as in the Roman law) it is granted to the ascendant of the highest
degree.
C. The law of property:

1) Ownership. is acquired by occupation, accession, prescrip-
tion, tradition, and hereditary succession.
2) The Roman-law rules on possession and servitudes-classi-
fied into real and personal-are reproduced.
D. The law of descent:

1) Many features of the Roman law of succession are borrowed,
.ke .the necessity of.fistituting an heir and the legal impossibility
of dying partly testate and .partly-intestate .. '. . .
2) Capacity to inherit from ascendants is denied sacrilegious,

adulterous, and incestuous children-all of whom are designated
fornecinos.
3) The legitimary system undergoes drastic changes: from the
4/5 of the Fuero Juzgo, the legitimes of descendants were reduced
to either 1/2 or 1/3, depending on the number of children.
4) Mejoras are not provided for.
5) On the other hand, legitimes are granted to ascendants.
6) Substitutions are classified into: vulgar, pupilar, ejeryplar,
and fideicomisaria.
7) Representation is made to operate ad infinitum in the direct
descending line, and to the second degree in the collateral.
8) Succession in the collateral line is allowed to the 4th degree;
in default of relatives within these degrees, the surviving 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 consent; the new Code emphasized form once more,
a change which Sinchez Roman, characterizes as "completamente
impuesto, grosero, material, formulario, artificial, 1 caprichoso, que
posterga el elemento espiritual d la observancia de pueriles rituali-
dades. " 27
2) Contracts are either real or consensual-among the former

are: mutuum, commodatum, deposit, and pledge; and among the
latter: sale, lease, partnership, and agency.
It is very probable that Alfonso intended the Partidas to be a
truly general law in his kingdom, to supplant the Fuero Juzgo, the
Fuero Real and the local fueros, although it has been conjectured
that he might merely have intended the code as an encyclopedic
treatise. Whatever his intentions may have been, however, the fact
that for more than eight decades, the Partidas did not acquire the
force of law. It was not until the Ordenamiento de Alcald de He-
nares, passed by the Cortes of that name in 1348 that 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 "Completely arbitrary, gross, materalistic, formalistic, artificial, capri-
cious, which subordinates the spiritual element to the observance of puerile
rubrics." 1 SANCHEZ ROMAN, Op.. 'Cit., p. 305.
1979] 9SPANISH 'ANTECEDENTS
after the decrees of the Cortes, the Fuero Real, and the local fueros.
This suppletory role of the Partidas. was again provided in the, sub-
sequent Laws of Toro. Centuries later, the order of preference or
prelation was once more laid down in Book III, Title II, Law III
of the Novisima Recopilaci6n, relegating the Partidas to a still
lower position of preference-after the Novisima and the Nueva,
after the Fuero Real, the Fuero Viejo, the Fuero Juzgo, and the
local fueros.
Perhaps the Partidas introduced- too much Roman law too
abruptly. Or perhaps the forces of decentralization were too strong.
What cannot be denied is that the influence of the Partidas was far
greater than their binding force as a legal enactment would warrant.
Slipshod though their organization may have been according to lat-
terday standards, they attracted the greatest attention and study.
Their encyclopedic treatment, as well as their obvious scholarship,
assured their lasting influence. Moreover they expressed the latest
-and by latest here, we mean the most closely Roman, for this
was an age that looked back to the splendor of Rome-trends in
juridical science, as it flourished in the great universities of Europe.
In the words of- a legal historian:
Great praise is due to the 13th century Spanish jurists
who wrote the Partidas; for they produced not only a
highly scientific code of law, the most notable of the age,
but also the most complete treatise of jurisprudence yet
published. The Partidas exercised enormous influence on
Spanish law other than Castilian, and lie at the basis of
the modern Spanish Civil Code of 1889.28
It is a tribute to the fame of the Partidas that every student
of law has at least heard of them-of them, rather than any other
Spanish code. Their influence on the legal systems of the countries
of the Hispanic world can hardly be overstressed.
LEYES DE ESTILO
Around half a century later (ca. 1310), during the reign of
Fernando IV there appeared a short compilation-the work of cer-
tain jurists headed by one OIdrado. de Ponte - which was styled
Leyes de Estilo. It consisted of 252 sections called "leyes" and some
of these sections had to with donations propter nuptias, conjugal
property, and prescription. It is more or less generally agreed, how-
ever, that this work did not have the force of law as such, rather
it was a kind of collection of explanatory notes and comments on the
28 1 SHERMA, op. Cit., pp. 278-279.
PHILIPPINE LAW JOURNAL (VOL, 54
Fuero Real. Subsequently, some of the sections were incorporated

in the Novisima Recopilaci6n and thereby acquired the force of law.
ORDENAMIENTO DE ALCALA
We have earlier referred to the Ordenamiento de Alcald de
Henares, passed by the Cortes convoked in that town in 1348, which
Ordenamiento or decree gave suppletory legal'force to the Partidas.
This Ordenamiento, however, did more than just recognize the
Partidas. It was itself a collections of laws, some of which had
reference to civil law, for instance:
(1) It emphasized the spiritual aspect of contracts, that is to
say the concurrence of wills, playing down-more precisely, ignor-
ing-the element of form, which had been stressed by the Partidas.
The Ordenamiento in fact went so far as to state "que sea valedera
la obligaci6n, 6 contrato que fueren fechos en cualquier Manera que
paresca que alguno se quiso obligar d otro, 6 facer contrato con 61".29
(2) It provided for lesion in sales, lesion being held to exist
when the inadequacy amounted to more than one-half of the price-
the right to rescind had to be exercised within 4 years.
(3) The taking of interest was absolutelk prohibited-a de-
parture from the 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 of reci-
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 clerk, 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 and partial intestacy, was expressly allowed.
ISABEL AND FERNANDO

After the Ordenamiento of AlcalM de Henares, 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 place in the autumn of 1469. The previous autumn, Isabella had
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 obligate another and make coritract wi.tk him.,' -
rique IV, popularly called el Impotente. He had a daughter, Juana

by name, or a purported daughter, for almost 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
called la Beltraneia, after her reputed father, a courtier named
Beltrin de la Cueva. The marriage of Isabella to Ferdinand, how-
ever, so upset Enrique el Impotente that he withdrew his recogni-
tion of his sister as heiress and acknowledged instead la Beltraneja
as the rightful successor. Not one to admit defeat, Isabella, upon
Enrique's death in 1474 promptly proclaimed herself Queen of Cas-
tile, thus plunging the kingdom into a bitter civil war. In 1479,
Isabella triumphed and this indomitable woman was, beyond all
challenge, Queen; her rival la Beltraneja betaking herself to a con-
vent and for the next half-century dreaming of splendors that
might have been by signing all her correspondence with the royal:
I, the Queen.
Ferdinand of course was heir to Arag6n's throne. In 1480, the
year after his wife emerged victorious in Castile, his father's death
made him king of Arag6n. At last Ferdinand and Isabella were joint
sovereigns of Arag6n and Castile, and if legally and technically,
these remained separate kingdoms, for practical purposes they
were one. They were Spain.
Almost as soon as things were settled, husband and wife turned

their prodigious energies to the final stage of the Reconquista.
Moorish Granada 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 still glistening in the setting sun, an intolerable
reminder to their Most Catholic Majesties that Spain was not yet
wholly theirs. And so they marched in battle, conquering and pillag-
ing, until in the autumn of 1491 they stood at the very gates of the
city of Granada. With an army of 80,000 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-while on a nearby sum-
mit, outside the city walls, a hill now called the Last Sigh of the
Moor- el Ultimo Suspiro del Moro-'a vanquishe'd Boabdil glanced
for the last time at the Granada that was no longer his, eyes brim-
ming with tears, while his wife Aixa" scorned himi: "Weep like a
woman," she taunted, "for what you could not defend like a man."
PHILIP-PINE LAW JOURNAL [Vor,,, 54
.1492--the year of glory. The year of the Reconquista's comple-

tion. The year of Spain's rise as a colonial power, -with the discovery
of the New World. The overseas expansion .was of course not to be
achieved in that year, but it was the beginning.. These two events
-internal consolidation and external expansion-were to have far-
reaching effects on the development of Spanish law and in a real
sense Ferdinand and Isabella are the central figures on the horizon.
And yet, glorious though their reign was, their immediate influence
on this legal evolution was minimal, manifested perhaps only in the
compilation, about the year 1484, of Dr. Alfonso Diaz de Montalvo,
who worked under a commission given by them. This work is com-
monly known as the Ordenamiento de Montalvo.
ORDENAMIENTO DE MONTALVO
This compilation of Montalvo - also called the Ordenanzas
Reales de Montalvo-was really a collection of various ordinances
of the Castilian Cortes as well as royal decrees, some of which dated
back to Alfonso 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-
lowing:
A The law of persons and family:

(1) a provision, constituting a departure from previous laws,
allowing the widow to contract marriage during the year following
her husband's death;
(2) a provision declaring conjugal the fruits of separate pro-
perty;
(3) a provision authorizing 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 being held to exist only if it is expressly provided by the
parties.
It is disputed whether this compilation, as such, was decreed
as law or whether it was just a collection 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-
1979] SPANISH ANTECEDENTS
rog existing simultaneously: It was becoming abundantly clear that

a systematic revision of the law was badly needed.
JUANA LA LOCA
In 1504, Isabella died and her successor by right was her oldest
surviving child Juana-Juana la Loca. Historians still debate about
her: was she really demented or was she merely declared to be so
and locked up, a hapless victim of husband, father, and son?. There
are fewer scenes in history more poignant than that of Juana. la
Loca at Tordesillas, disconsolate over the dead body of her husband
Philip the Handsome, and forbidding his burial because a Carthusian
monk had dangled before her the hope of. Philip's resurrection.
But Juana la Loca, mad or no, was Reina propietria. of Castile,
and in 1505 the Castilian Cortes was summoned at Toro to proclaim
her Queen and to ratify her father Ferdinand's title to the regency.
This Cortes also published a piece of legislation passed by a pre-
vious Cortes-that of Toledo-in 1502, which had thitherto not been
promulgated. It was the promulgating Cortes that gave this law its
name-the Leyes de Toro.
LEYES DE TORO
The Leyes de Toro consist of 83 laws, arranged helter-skelter,
without any attempt at structural organization. There are no divi-
sions in books, or titles, or sections. It is a free-wheeling enumera-
tion. However, 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 naci-
do" with the following requisites: a) the child must be born alive;
b) it must survive at least 24 hours; and c) it must be baptized. If
any of these requisites was absent, the child was not "naturalmente
nacido" but "abortivo".
(2) Marriage was recognized as a cause of emancipation from
parental authority, and the usufruct of any adventitious property
passed to the child from the time of the marriage.
(3) An interesting feature of this legislation was the so-called
"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, if
he had already kissed her.
(4) The wife could not renounce any inheritance without the
husband's consent.
(5) The wife could neither contract nor go to court without
the husband's consent.
(6) The conjugal regime was more minutely regulated, various
provisions being devoted thereto.
(7) Natural children were defined as those born of parents
who, at the time of the child's conception or birth, could have mar-
ried lawfully and without dispensation.
B. The law of property:

(1) A provision governs interruption of prescriptive periods.
C. The law of descent:

(1) Persons subject to the penalty of death were, unlike the
rule in the Partidas, allowed to make wills.
(2) The minimum age for will-making was fixed at 14 for males
and 12 for females.
(3) Legitimate ascendants were made compulsory heirs in de-
fault of children or descendants; as heirs these ascendants excluded
collateral relatives of the decedent.
(4) In default of descendants and ascendants, brothers and
sisters inheritea by intestacy; and in representation of predeceased
brothers or sisters, nephews and nieces inherited per stirpes, not
per capita.
(5) All kinds of illegitimate children were excluded by legiti-
mate descendants from the succession of the mother, but in the ab-
sence of legitimate descendants, these illegitimates-whether na-
tural or spurious-succeeded to the mother's estate to the exclusion
of legitimate ascendants; on the other hand, the father and the mo-
ther could each give illegitimate children of all kinds legacies for
support not exceeding one-fifth of their respective estates, but a
man without legitimate children could give a natural child any
amount he wished.
(6) Mejoras could be given either by will or by contract-in
addition to this, several other rules governing mejoras were laid
down.
(7) Mayorazgos - already an established practice throughout
the land but theretofore unregulated in the Codes - were there
regulated.
1979] SPANISH ANTECEDENTS-
D. The law of obligations and contracts:

(1) Donations of the universality of the donor's patrimony were
prohibited, even if only present property was included therein.
The Laws of Toro were enacted in an effort to clarify, explain
and reconcile, at least in part, existing legislation, which, as men-
tioned earlier, had fallen into a state of utter confusion. The im-
portance of these laws is shown by the fact that they were incorpora-
ted in both the Nueva and the Novisima Recopilaci6n. But the pas-
sage of the Leyes de Toro was a mere palliative remedy, inadequate
surely for the legislative chaos. More drastic reform was required.
As Sdnchez Rom n points out: "La reforma de la legislaci6n exigia
algo mds capital y decisivo que soluciones transitorias...,SO
NUEVA RECOPILACION
Ferdinand of Arag6n died in 1516; Juana la Loca survived until
1555, the rightful sovereign to the end of her days. But because
of her madness-real or foisted-power passed to her eldest son,
Charles of Ghent. A historian has described him, not too sympathe-
ticaly, as "a gawky, unprepossessing youth with an absurdly pro-
nounced jaw ... looking like an idiot ... and suffering from the
unforgivable defect of knowing no Castilian," 31 this last because
he had been raised in the Netherlands. But whatever may be said
about his jaw, he became the most powerful man in Europe - Duke
of Burgundy, King of Castile and Le6n, King of Arag6n, Count of
Barcelona, these were some of his titles; and most of all he was Holy
Roman Emperor - Charles the First of. Spain and the Fifth of the
Empire. He was an absentee king, staying in Spain only 16 years
out of his 39 years as king. In January 1556, he abdicated the
throne, passing the sceptre to his 29-year old son, Felipe II.
Philip was a different king altogether - hard-working, atten-
tive (perhaps too attentive) to detail, contemptuous of the Reforma-
tion, and staunchly Spanith. He found himself sovereign of a realm
on which the sun never set - an empire larger than Europe, won
for him by Cortes and Pizarro and the other conquistadores, an em-
pire that included, we may say, across the wide ocean from the
vast silver .mines of Potosi, a small output in the Indies fittingly
named after him.
This king, Philip II, seeing the great and urgent need for law
reform, commissioned a minister of his Council, named Bartolom6
30 "Law reform required something more drastic and decisive than tem-
porary solutions." 1 SANCHEZ ROMAN, op. cit., pp. 383-384.
31 ELLIOTT, IMPERIAL SPAIN: 1469-1716 144 (1976).
'I
Liw J6RI4;MVL.5 [VOL:'k
L6pez de Arrieta, and, p6on "this 'fan'- d~ath,"anotF& ju.rist, Bar-

tolom6.Atienzai t0ixndertakd,:this -difficult task. On 14.March 1567,
the resultant 'c mpilationi was. .promulgated by .- is 'Majesty under
the title "Puwva R.ecopilaci6n de las Leyes de Espafia." This new
code soug*.. -to incorporate and unify the diverse strands of the
Fuero Real the Partidai 'the Ordinanc of Montalo, the Laws of
Toro, and tJ. other laws; it, -also contained royal decrees and legis-
lative ena, #nents.. up,. tp. the time of its preparation . It,was com-
posed of Wine books,.in 214 titles, and 3,391 laws. It. s the fifth book
which deals with civil law and a few features are noteworthy; e.g..,
(1) Husbands, at least -18 years of age, could administer their
property and that of' thei Wives.
(2) All assets existing at the time of the disolution of the mar-
32
riage were presumed conjugal.
If the purpose of this compilation,. however, was -to clarify the
state of the law, it was -a dismal failure. Its organization was sloppy,
its integration inadequate, its explanations unclear. Worst of all, it
retained the -Order of,Prelation of the Ordinance of Alcali and the
Laws of Tol'o and therefore did not repeal the earlier laws. As ex-
plained by ia historian:
The. object of the Nueva Recopilaci6n was to clarify
and render more intelligible the existing law. But the out-
come did not realize this purpose and was deplorable...
And .because the, Nueva Recopilaci6n did not abrogate
earlier collections of law, it became merely another sup-
plementary .compilation to the anterior codes, which re-
tained most of their authotity and had still to be consulted.
The Nueva at best was but a partial codification. The an-
cient condition of confusion and diversity... still con-
tinued.. .3
Indeed,- not only continued, but became worse, for on top of
all the previous codes, -we had still- another.
And yet, in another sense, the Nueva Recopilaci6n was an im-
portant development for it "was an effort to codify Castilian law
and did contribute to its unification" and thus "it may be regarded
as marking the comencrie'nt
' 'z of the movement to unify and codify
the law Of all Spain.
2
3 Cf. PHIL. CiviL COE, art. 160.
s3Sherman, op. cit., pp,.."284-285.
34 Ibid.
1979].: PANISH ANTECEDENTS - 5
THE,BOURBONS
Philip II ruled -Bpain at the height of her power, but perhaps
he strained the nation's resources beyond the limit, and his death
in 1598, just a decade after the- rout of the Invincible Armada 'at
the hands of the English, marked the start of a long decline. Philip
III (1598-1621), Philip IV (1621-1665), and Charles II called the
Bewitche~d [El Hechizado] (1665-1700), each one weaker than the
last, presided over a Spain that was slowly slipping to the position
of a second-rate power. The Netherlands were lost - first the Pro-
testant part, then the Catholic-then Sardinia, and the Burgun-
dian possessions, and Portugal. By the end of the century, the pr-
ponderant power in Europe was clearly France, the France of Louis
XIV.
The death in 1700 of Charles II without an heir brought to
the throne Philip of Anjou, grandson of the Spanish princess Maria
Teresa, but grandson, to6, of Louis XIV. The claim had been con-
tested by the Arch'duke Charles of Austria but the Sun King's ma-
chinations won the day. Thus at the opening of the 18th century,
the Crown of Spain passed from Habsburg to Bourbon, when Philip
of Anjou became Philip V of SDain. The War of the Spanish Suc-
cession, waged from 1702 to 1711, failed to dislodge Philip from the
throne but succeeded in weakening Spain further. However, the de-
cline was arrested, even reversed, under the succeeding Bourbon
monarchs, though Spain never quite recovered the glory of the
16th century.
The absolutism of the Bourbons had the effect of bringing
about the centralization of Spain. In 1707, "the special statutes and
privileges of Arag6n and Valencia were abolished and their place
taken by the laws and practices of Castile."5 Catalufla 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 that was affected. So, the fragmentation in
civil law continued. And even in Castile itself, what was the state
of its civil law? Confusion and chaos - code heaped upon code,
law- upon law, an utter babel of statutory provisions.
NOVISIMA RECOPILACION
Towards the end of the 18th century, Charles IV, wishing some-
thing to be done about the legal situation, commissioned Juan de la
Reguera Valdelomar, a jurist, to revise the *Nueva Recopilaci6n.
The work was submitted to the King in 1802, and on 15 July 1805,
35
CHAPMAN, op. cit., p. 429.
it was promulgated under the title: "Novisima Recopilaci6n de las

Leyes de Espafia." It was structured along the same lines as the
Nueva, consisting of 12 books with 340 titles and 4,020 laws. The
civil law portion is found in Book X, with 24 titles.
Worth mentioning among the provisions are:
(1) a provision renewing a lease for one year if no notice to
vacate had been given prior to expiry date;36
(2) the prohibition of subleases;
(3) the adoption, as the law on marriage, of the Tridentine
decree on this subject;
(4) the requirement of paternal consent to marriages of boys
below 25 and girls below 23 (requisito necesario).
The effort 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 of it was a rehash of the Nueva,
and it was just one more code on top of the rest. Sherman suc-
cinctly states the matter:
Although the royal decree of Charles made the No-
visima Recopilaci6n superior to all earlier law, yet, inas-
much as the Novisima did not definitely repeal either the
Nueva Recopilaci6n or the Partidas, its effect was to make
the Novisima merely a supplementary code or partial codi-
fication. For it did not abrogate the order of the sources
of Castilian-Spanish law as fixed in the Ordenamiento of
Alcali and the Laws of Toro. Hence, what the Novisima
Recopilaci6n actually accomplished was to make Spanish
law more obscure and confusing than ever. 7
IN THE PHILIPPINES
We have adverted earlier to the vast territories acquired by
Spain in the 16th century. The famous Line of Demarcation, set
by Alexander VI in the Bull Inter Caetera of 4 May 1493, ran
from north to south 100 leagues west of the Azores. All 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 was not certain whether it also gave them the Moluccas, the rich
islands of spice. Nevertheless, in 1529, Charles V, for a consideration
of 350,000 ducats, renounced all Spanish claims to the Moluccas -
36 Cf. PHIL_ CIVIL CODE, art. 1670.
37 1 SHERMAN, op. cit., p. 288.
1979] SPANISH ANTECEDENTS
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 jurisdictions of varying sizes, of which the two main ones were
the viceroyalty of Mexico (New Spain) and the viceroyalty of Perd.
The Philippines was a gobernacidn under the Vice-royalty of Mexico.3 8
The bureaucracy of course started with the monarch. In govern-
ing the colonies he was assisted first by the Casa de Contrataci6n,or
Board of Trade, established in 1503 and headquartered in Seville,
and then, from 1524, by the Consejo de las Indias, the Royal and
Supreme Council of the Indies. The Consejo, composed chiefly of
lawyers, "had supreme jurisdiction [i.e. supreme, but subject to
the King ultimately] over all the colonies; all the laws and ordi-
nances of viceroys and governors were subject to its approval, and
it had power to frame laws."3 9 Thus, the government, as well as
the various affairs of the colonies, was run by the viceroy or gov-
ernor, but subject to a vast assortment of decrees - variously called
cddulas, decretos, resoluciones, ordenamientos, reglamentos, prag-
mtdticas, etc. - issued by the King or by the Consejo in his name.
These decrees, collected, abstracted, explained, and coordinated, were
put together in what Horacio de la Costa calls "surely the most
impressive body of colonial legislation in history" - the Recopilaci6n
de Leyes de los Reinos de las Indias. In addition of course, applying
in a suppletory capacity, were the numerous codes and laws 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 los casos, ne-
gocios y pleitos en que no estuviere decidido ni declarado
lo que se debe proveer por las leyes de esta Recopilaci6n, 6
por c~dulas, provisiones fi ordenanzas dadas y no revoca-
das para las Indias, y las que por nuestro orden se despa-
cheren, se guarden las leyes de nuestro reino de Castilla
conforme A la de Toro, asi en, cuanto i la sustancia, reso-
luci6n, y decisi6n de los .casos, negocios y pleitos, como i
]a forma y orden de sustanciar.
"(We ordain and decree that in all causes, suits, and litigations
in which the laws of this compilation do not provide for the manner
of their decision, and no such provision is found in special enact-
38
De la Costa, Outpost of Empire, ASIA AND THE PHIIAPIINEs t5 (1967).
39 WALTON, op. cit., p. 520.
38 PHJLIPPINBt LAW" JOURNAL [VOL. 54
ments 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
on the merits.")
This decree of 1530 was later incorporated into the Recopila-
6i6n de las Leyes de las Indias as laws 1 & 2, title 1, book. 2. It
is to be noted that, after the special enactments specifically directed
to the colonies, the order of preference or prelation of the Leyes de
Toro and the Novisima is retained. Which made for a very con-
fusing situation indeed.
For the Philippines then, as for the other colonies, the order
of application was roughly thus: (1) the latest laws enacted for
the colonies and decreed therein, (2) the Recopilaci6n de las Indias;
(3) the Novisima; (4) the Nueva; (5) the Leyes de Toro; (6) the
royal ordinances of Castile; (7) the Ordenamiento de Alcali; (8)
the Fuero Juzgo; (9) the Partidas.
Since a minimal number of special decrees concerned civil law,
and virtually no provisions of a civil law nature were found in the
Recopilaci6n de las Indias, the supplementary laws were frequently
applied, as witness the abundant references thereto in the Philip-
pine Supreme Court decisions. The Partidas for instance, have been
cited and applied in matters as disparate as bigamous marriages 40
and lands of the public dominion.4' The successional rights of chil-
dren, to take another -example, were, before the Civil Code of 1889,
governed by the Laws of Toro. 42 Neither time nor space permits
a more detailed discussion-that would be matter for another lec-
ture.
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 legal situation in the
Philippines:
The Leyes de Indias, compiled 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
little, printed. The advocates generally know the laws in
force by tradition and" hearsay, but when they. need any
40 Sy Joc Lieng v. Sy Quia, 16 Phil.* 137 (1910).
41
42
Ker v. Cauden, 6 Phil. 782 (1906).'
Jayme v. Gamboa, 75 Phil. 479 (1945).
1979] SPANISH ANTECEDENTS A9
of the laws they have to.look for it in the house of some

friend, .or if not j.h t,, the secretr ffice of the
government, whence very.jreque l,. it appe r d,
or in the office of the fiscal,. pr th4t" of 'the intdant;
because some orders are communicated 'by [the niinstrj.
of] grace and justice, and others, Vy the reasury or by
other ministries. He. who, as no relahes or js neiU the
country is ignorant of the rufes in for, or has hotrthe
means of acquiring them. Besides sb fa"'-s tliey" aie .fiot
overthrown by the Leyes de"IndisiA"e kas of the "Siewe
Partidas have as 'much force"as d6 thi 9est IReopilacion
° law, royal and old 16W; and; in "fact
[de las Indias], 'RoM-an
all the confused mass 6f the Slanish "c6des. Consequently,
'''it is a vast 'sea in which are fourid':abundaintly the resbur-
cels necessary to mix up matteid -and 'stultifyr the course
of justice. ".
THE FINAL STAGE
,i 'Sinibaldo de Mas' Report was published in 1843; the Novisima,
in 1805. Sixteenyears before the Novisima.-the great revolution had
broken out. in France, and the revolutionary. government, as part of
its measures to sweep away the ancien r' gime, passed a law in 1792
directing codification. This was, a salutary step,, considering Voltaire's
comment that in France, a traveller -changed his law more often
than his horse. The turbulence of the upheaval, however, prevented
codification; it was not until Napoleon -Bonaparte, who came to
power in 1799, that this work was achieved. Meeting in -the Chateau
of Fontainebleau; a commission headed by two -distinguished law-
:yers, Portalis and Tronchet, but whose sessions were frequently
attended by the First Consul himself, worked on- a Civil Code,
which was promulgated in 1805. To -this day, it is the Civil Code
of the -French - the oldest in existence. That set the- example' for
-many countries in Europe, Spain included..-
How 'did finil codification' come about in Spain? The "aftermath
''of the Napoleonic occupation was a brief eriod of constitutionalism
under the liberal Constitution of C~diz of 1812. "Recognizing the
grave need for law' reform, that Const'itution "provided: "Un siolo
C6digb civil regird en todos los dominios'd l eonarquia
espao.;'
E'ven before the adoption of' the Constitution,-the Cortes of Cidiz
43 Sinibaldo de Mas, Informe sobre el estado de las Islas- Filipinas,'.en
1842, in 36 BLAIR & ROBERTSON, THE PHILIPPINE ISLANDS 300-301 (1903-1909).
44 "One Civil Code alone shall govern 'in"all the territories under - the
Spanish -Crown." - .:- •I . . ......
on 5 February 1811, approved a resolution of Deputy Espiga y Ga-

dea to effect, as soon as possible, the codification of all the major
branches of Spanish law. Due to the return of Ferdinand VII in
1814 and the upheavals that followed, that proposal came to nothing.
But the hope behind it remained alive - and on 19 August 1843
a royal decree constituted a Comisi6n general de C6digos, subsequent-
ly divided into two sections to distribute the work. On 8 May 1851,
the Commission submitted a draft of a Civil Code, divided into a
preliminary title and 3 books, containing a total of 1,992 articles.
The first book was on Persons; the second, on Property and Owner-
ship; and the third, on the Modes of Acquiring Ownership. (Con-
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 pigeonholed, although there were effusions
of gratitude and praise for the dedication and industry of the Com-
mission.
During the next decades, however, 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 such laws enacted were the
Mortgage Law; the Notarial Law, the Law of Waters, on Marriage,
on the Civil Registry, etc. At length, on 2 February 1880, another
royal decree called for codification, and this time the composition
of the Code Commission was trans-regional, with members repre-
senting Catalufila, 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-
concile the laws of the different fueros. In 1881 a proyecto de Bases
-an outline of bases or fundamental points-was submitted to the
Senate, and in 1881, the draft of the first two books-on persons
and on property. The work, however, was suspended again, owing
to some unfavorable political developments. But momentum had been
gained, and three years later, the Minister of Justice presented a
proposed ley de Bases-fundamental points on which the Civil Code
was to be based, totalling 27 in number-to the Cortes, which, how-
ever, due to irresolution and its dissolution, failed to decree it into
law. But on 11 May 1888, it became law by royal fiat. The draft of
the Code having been completed by the Code Commission, a royal
decree of 6 October 1888 ordained the publication thereof. On 11
February 1889, it was decreed that the new Code would take effect
on 1 May of that year, but it was actually on 24 July 1889 that the
definitive text of th Co'de w'ag promulgated. 'Spain had a Civil Code.
19791 9SPANISH ANTECEDENTS
THE CODIGO CIVIL

It was composed of a preliminary title with 16 articles, and
four books subdivided into 41 titles and further subdivided into
chapters and sections and articles. The first book is entitled: De las
Personas, (Persons); the second, De los Bienes, de la Propiedad,y
de sus Modifleaciones, (Property, Ownership, and its Modifications) ;
the third, De los Diferentes modos de Adquirir la Propiedad, (Dif-
ferent ways of Acquiring Ownership); and the fourth, De las Obli-
gaciones y Contratos, (Obligations and Contracts). The article to-
tal 1,976. It is clearly the product of the evolutionary process of
Spanish law over the centuries, with borrowings from the French
Code thrown in for good measure. It is the child of a living tradi-
tion.
We need not go into the question of how effectively and to what
degree the new Code superseded foral law-that would be of in-
terest only to the Spanish people. What does interest us is how the
new Code came to the Philippines.
One week after the publication of the official text of the Code, a
royal decree, dated 31 July 1889, was issued by the Queen Regent
Maria Cristina, in the name of her son, King Alfonso XIII. This
decree extended the Code to the Islands of Cuba, Puerto Rico, and
the Philippines, to take effect twenty days after its publication in
the official newspapers of the same - "a los veinte dias siguientes
d su publicacidn en los peri6dicos oficiales de las Islas." This decree
received the cfemplase of the governor-general on 12 September 1889,
and the text of the Code was published in the Gaceta de Manila, the
colony's official publication, on 17 November 1889. It therefore be-
came effective in the Philippines on 7th December 1889-the 20th
day after its publication, as held by Mijares v. Nery,"4 or on 8th
46
December-the 21st day, if we follow Benedicto v. de la Rama.
On 31 December 1889 an order was published in the Gaceta de
Manila under the name of Governor-General Valeriano Weyler. It
read:
By direction of her Majesty's Government, until fur-
ther order, titles 4 and 12 of the Civil Code, extended to
these Islands by royal decree' of July 31 last, published
in the Gazette of this city on the 17th of November last, are
suspended in this Archipelago.
45 3 Phil. 195, 199. (1903)°,
403 Phil. 34, 36 (1903). .
PHILIPPINE LAW .JOURNAL [VoL.. ,G4
The proper authorities will issue the necessary or-

ders to the end that in lieu of the two titles so suspended
the former law may continue in force.
This order will .be communicated and published.
WEYLER
Some questions were raised about Weyler's order. First, was
there really a directive from Madrid to suspend these two titles?
The case of Benedicto v. de la Rama tells us that, according to the
compilaci6n Legislativa de Ultramar, no such decree was ever pub-
lished in the Gaceta de Madrid and no copy of any such decree was
obtainable in any government office. 47 S~nchez Rom.n, however,
states that, "according to reports which merit a certain amount of
credit," what probably happened was that the colonial government
issued the order of suspension after consulting the colonial office.48
Moreover, it is well-known that a royal decree did not take effect in
the colonies automatically; it needed the cimplase of the governor
or viceroy. So, Weyler could be said to be merely withholding the
ciimplase on the two titles referred to. But the second question was:
which title 4 and which title 12? The Code, as we know, contains
four books. Books I, II, and IV all contain a title 4, and Books I
and IV have a title 12. However, by a process 6f 6limination and
by reason of historical antecedents, it was generally accepted that
the order meant titles 4 and 12 of Book I. Title 4, covering Articles
42 to 107, is the title on marriage; title 12, from Article 325 to 332,
on the registry of civil status.
Title 12 was suppressed probably because there was no such
officer as a municipal judge who could take charge of the civil re-
gistry. 49 And title 4, probably because of what SAnchez RomAn in-
triguingly refers to as the opposition of "certain class influences."
We note that the new Code recognized two forms of marriage-the
canonical and the civil. Because .of the suspension of title 4, the
only form of marriage allowed in the Islands continued to be the
canonical, under the decree of Philip II of 12 July 15640 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 11 November 1563, It contained the law of the
Church on marriage.
473 Phil. 37 (1903). .
48Ibid.
493 Phil. 37 (1903), citing 2 SANCHEZ ROMAN, op. cit., p. 64;
60 In the Novisima, law 13, title I, book I.
19791 SFNIS
97.9 ANTECEDENTS
And so it was that, with the :exception of two titles,-'the -Civil

Code of Spain became law in the Philippines. The rest of the 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 be in force; anid the
establishment of the. Republic, soon after which, on 20 March 1947,
President Roxas issued Executive Order No. 48, calling for the
framing of a Philippine Civil Code. The work was begun by the Code
Commission on 8 May 1947, the draft submitted to Congress as
House Bill No. 2118, enacted as Republic Act No. 386 on 18 June
1949, took effect on 30 August 1950. The Code Commission Report
tells us that 57 percent of the 2,270 articles of the new Code are
derived-either by verbatim translation or by adaptation-from
the Spanish Code. That should give us an idea of the exteit of the
Spanish influence on our. code, especially if we consider that this
57 percent refers to the. most basic provisions, like the law on
persons, the law on property, on succession, and on obligations.
Three decades have passed since the framing of this code. Very
soon, experts may b'e called to work on-a project of recodification.
That should be a wise and welcome thing, for a revision is very
much in order. B4t if we are to produce something worthwhile,
a balance has to be struck between contemporary relevance and
a historical sense. Thev first is attained. by an awareness of the
complex needs and challfenges of present-day Philippine society, as
well as the social and Cultural coordinates of the Filipino as he
journeys with mixed. feelings of hope and 'fear towards the 21st
.century. But, lest contemporaneity become asephemeral as today's
headlines, timely today, stale tomorrow, the second element-7- 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.
BIBLIOGRAPHY
BERTRAND, LOUIS AND PETRIE, CHARLES. THE HISTORY OF SPAIN. 2d ed. New
York, The Macmillan Co., 1952. 432 p.
BLAIR, EMMA H. AND ROBERTSON, JAMES A. THE PHILIPPINE ISLANDS, 1493-
1898. Cleveland, 1903-1909. 55 v.
BuRDicK, WILLIAM L. THE PRINCIPLES OF ROMAN LAW AN"D THEIR RELATION TO
MODERN LAW. New York, Lawyers Co-operative Publishing Co., 1938. 748 p.
CASTRO, FEDERICO DE. DERECHO CIvIm DE ESPARA. 2d. ed. Madrid, Grificas Tejario,
1949. 2v.
CHAPMAN, CHARLES A. A HISTORY OF SPAIN. New York, The Free Press, 1918.
559 p.
COSTA, HORACIO DE LA. ASIA AND THE PHILIPPINES. Manila, Solidaridad Pub-
lishing House, 1967. 169 p.
ELLIOTT, JOHN H. IMPERIAL SPAIN': 1469-1716. Aylesbury (England), Hazell
Watson & Viney Ltd., 1976. 423 p.
HAYES, CARLTON; BALDWIN, MARHALL; & COLE, CIIARLES. HISTORY OF EUROPE.
Rev. ed. New York, The Macmillan Co., 1956. 1089 p.
LOBIN GIna, CHARLES S. The Spanish Lawo in the Philippines, 1 PHIL. L. REV.
597-609 (1912). Reprinted from the Bulletin of the Comparative Law
Bureau, 1911.
LUKE, MARY M. CATHERINE, THE QUEEN. New York, Warner Communications
Co., 1973. 542 p.
MALCOLM, GEORGE A. THE GOVERNMENT OF THE PHILIPPINE ISLANDS. New York,
Lawyers Co-operative Publishing Co., 1916. 794. p.
MAS, SINIBALDO DE. INFORME SOBRE EL ESTADO DE LAS ISLAS FILIPINAS EN 1842.
Madrid, 1843. 3 v. (In Blair and Robertson, The Philippine Islands, Vol.
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MICHENER, JAMES A. IBERIA. Connecticut, Fawcett Publications, 1968. 960 p.
MINCUIJON, SALVADOR. HISTORIA DEL DERECHO ESPAROL. 3d. ed. Barcelona, Talle-
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fico. "Sucesores de Ribadeneyra", 1899, 6 v. in 10.
SHTERMAN, CHARLES. ROMAN LAw IN THE MODERN' WORLD. New York, Baker,
Voorhis & Co., 1937. 3 v.
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Michigan Press, 1965. 508 p.
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WALTON, CLIFFORD S. THE CIVIL LAW IN SPAIN AND SPANISH AMERICA. Wash-
ington, D.C., W. H. Lowdermilk & Co., 1900. 672 p.
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On the morning of 19 October 1469, in a private residence in

Despite the simplicity of the ceremony, it would not have taken

* Lecture delivered at the College of Law, University 6f the Philippines

there over the succession to the childless Martin I. The Compromise

EARLY IBERIAN DEVELOPMENTS

not domination. The original interests of Carthage in the peninsula

Through all the centuries of Roman rule, the history of His-

(2) Adultry was dealt with severely- ".. . el [marido], des-

Other features of Visigothic customs may be mentioned:

THE CODE OF EURIC

traces of -Roman law still remained among them - until Euric's

THE BREVIARY OF ALARIC -

This king -'Alaric II - formed a commission of Visigothic

The Code is in two parts: the text and the interpretation

THE CODE OF JUSTINIAN

THE FUERO JUZGO

8) The ninth book, called De fugitivis et de refugientibus deals

A. The law of persons and family:

(a) difference in status - i.e. between a freeman and a

B. The law of property:

C. The law of descent:

(5) An order of intestate succession was established.

D. The law of obligations and contracts:

eclipse, sudden, inexorable,, first on the banks of the Guadalete, and

THE MOORS AND THE RECONQUEST

yad caliphate of Damascus. As a result of the passing of power

After Tarik's conquest, nothing was left of Visigothic Spain

were united as a single..kingdom under one monarch, and the united

privileges. This then is the situation we see emerging from 718

office. [Governmental jurisdiction because if the land was

was extended to the overseas provinces, taking effect there on 1

THE FUERO REAL

B. The law of persons and family:

C. The law of property:

*.(2) The elements of prescription are enumerated: a). con-

D. The law of descent:

E. The law of obligations and contracts:

of 27 titles, is devoted to civil law proper, principally family law;

B. The law of persons and family:

C. The law of property:

D. The law of descent:

2) Capacity to inherit from ascendants is denied sacrilegious,

E. The law of obligations and contracts:

2) Contracts are either real or consensual-among the former

Fuero Real. Subsequently, some of the sections were incorporated

ISABEL AND FERNANDO

rique IV, popularly called el Impotente. He had a daughter, Juana

Almost as soon as things were settled, husband and wife turned

.1492--the year of glory. The year of the Reconquista's comple-

A The law of persons and family:

B. The law of obligations and contracts:

rog existing simultaneously: It was becoming abundantly clear that

A. The law of persons and family:

B. The law of property:

C. The law of descent:

D. The law of obligations and contracts: