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Ferdinand the Catholic confirming the fueros of Biscay at Guernica in 1476

Fuero (Spanish) is a Spanish legal term and concept. The word comes from Latin forum, an open space used as market, tribunal and meeting place. The same Latin root is the origin of the (French) words for and foire, and the (Portuguese) words foral, forais and foro; all of these words have related, but somewhat different, meanings.

The (Spanish) fuero has a wide range of meanings, depending upon its context. It has meant a compilation of laws, especially a local or regional one; a set of laws specific to an identified class or estate (for example fuero militar, comparable to a military code of justice or fuero eclesiástico, specific to the Church). In many of these senses, its equivalent in the Anglo-Saxon world would be the charter.

Contents

History

Fuero dates back to the feudal era: a fuero could be conceded or acknowledged by the lord to certain groups or communities, most notably the Roman Catholic Church, the military, and certain regions that fell under the same monarchy as Castile or, later, Spain, but were not fully integrated into those countries.

The relations among fueros, other bodies of law (including the role of precedent), and sovereignty is a contentious one that echoes down to the present day. The various Basque provinces generally regarded their fueros as tantamount to a constitution, a view that has been accepted by others, including President of the United States John Adams, who cited the Biscayan fueros as a precedent for the United States Constitution. (Adams, A defense…, 1786)[1] This view regards fueros as granting or acknowledging rights. In the contrasting view, fueros were privileges granted by a monarch.

In practice, distinct fueros for specific classes, estates, towns, or regions usually arose out of feudal power politics, and (depending on one's point of view) were wrested from the monarch in exchange for the general acknowledgment of his or her authority, were granted by the monarch to reward loyal subjection, or (especially in the case of towns or regions) simply acknowledged distinct legal traditions.

In medieval Castilian law, the king could assign privileges to certain groups. The classic example is the Roman Catholic Church; the clergy did not pay taxes to the state, enjoyed the income via tithes of local landholding, and were not subject to the civil courts: church-operated ecclesiastical courts tried churchmen for criminal offenses. The powerful Mesta organization, composed of wealthy sheepherders, enjoyed vast grazing rights in Andalusia after that land was "reconquered" from the Muslims (see Reconquista). Lyle N. McAlister writes in Spain and Portugal in the New World that the Mesta's fuero helped impede the economic development of southern Spain, creating the pressure that encouraged Spaniards to emigrate to the New World.[2]

The military had similar fueros; the situation was not unlike the distinction of military law today. It has been argued that the military fuero is part of the military culture of Latin America, which has been partially blamed for the various military coup d'etats of the 20th century.

During the Reconquista, the feudal lords granted fueros to some villas and cities, to encourage the repopulation of the frontier and of commercial routes. These laws regulated the governance and the penal, process and civil aspects of the places. Often the fueros already codified for one place were granted to another, with small changes, instead of crafting a new redaction from scratch.

In the twentieth century, Francisco Franco's regime used the term fueros for several of the fundamental laws. The term implied these were not constitutions subject to debate and change by a sovereign people, but bills granted by the only legitimate source of authority, as in feudal times.

Regional charters

In contemporary Spanish usage, the word fueros most often refers to the historic and contemporary fueros or charters of certain regions, especially of the Basque regions.

In the last days of the Western Roman Empire, the Basques are supposed to have played a prominent role in the Bagaudae (peasant revolts resisting the dawn of feudalism). The Basques successfully maintained their independence from the Germanic tribes such as the Goths, forming the Duchy of Vasconia (centered in present-day Gascony and dynastically connected to the Duchy of Aquitaine). As the Muslims invaded the Iberian Peninsula, Vasconia and Aquitaine sought the aid of Charlemagne and subsequent Carolingian monarchs, resulting in a certain amount of assimilation; however, during this period, a bit to the south, a new Basque nucleus grew, in the form of the Kingdom of Pamplona, later known as the Kingdom of Navarre. Navarrese law developed along less feudal lines than those of surrounding countries. In 1234 when the first foreign king the French Theobald I of Champagne arrived, he didn't know Navarrese common law and it was necessary for a commission to write it; that was the first fuero.

Castile absorbed Navarre between 1512 and 1526 (up to the summit of the Pyrenees). In order to gain Navarrese loyalty, fueros were granted allowing the region to continue to function under its historic laws. (Meanwhile, northern Navarre became increasingly tied to France, a process completed when a Navarrese prince became King Henry IV of France.) Although not without conflicts, until the era of the French Revolution on both sides of the Pyrenees quasi-independent Basque regions successfully maintained their fueros.

Every Biscayne or Guipuscoan was a born hidalgo (gentry), thus free of torture and to serve in the army. (Don Quixote's Sancho Panza remarked humorously that writing and reading and being Biscayne was enough to be secretary to the emperor).

The Aragonese fueros were an obstacle for Philip II when his former secretary Antonio Pérez escaped the death penalty by fleeing to Aragon. The king's only means to enforce the sentence was the Spanish Inquisition, the only cross-kingdom tribunal of his domains. Pérez escaped again to France, but Philip's army invaded Aragon and executed its authorities. The Inquisition however had frequent conflicts of jurisdiction with local civil authorities and bishops[3 ].

However, the Revolution brought the rise of the centralized nation state (also referred to in a Spanish context as "unitarianism", unrelated to the religion of the same name). Whereas the Ancien Régime had allowed for regional privileges, the new order did not allow for such autonomy. The jigsaw puzzle of fiefs was rationalized into départements, based on administrative and economic concerns, not tradition.

Spain in 1850; the colors represent the different bailiwicks.

During the two centuries following the French Revolution and the Napoleonic Era, the level of autonomy for the Basque regions within Spain has varied. The cry for fueros (meaning regional autonomy) was one of the demands of the Carlists of the 19th century, hence the strong support for Carlism from the Basque Country and (especially in the First Carlist War) in Catalonia and Aragón. Thus, the Carlist effort to restore absolute monarchy was sustained militarily mainly by those whom fueros had protected from the full weight of absolutism. The defeat of the Carlists in three successive wars resulted in continuing erosion of traditional Basque privileges.

The Carlist land-based small nobility (jauntxo) lost power to the new bourgeoisie, who welcome the extension of Spanish customs borders from the Ebro to the Pyrenees. The new borders protected the fledging Basque industry from foreign competition and opened the Spanish market.

The new class negotiated the Ley Paccionada (in Navarre), which granted a substantial autonomy to the provincial governments within the Spanish state.

Sabino Arana, founder of the Basque Nationalist Party, came from a Carlist background. He rejected the Spanish monarchy and founded Basque nationalism on the basis of Catholicism and fueros (in old Basque, Fueroac; Standard Basque, Foruak; Arana's neologism, Lagi-Zaŕa, "Old law").

The high-water mark of a restoration of Basque autonomy in recent times came under the Second Spanish Republic. This led the Basque nationalists to support the left-leaning Republic as ardently as they had earlier supported the right-wing Carlists (note, however, that contemporary Carlists supported Francisco Franco). The defeat of the Republic by the forces of Francisco Franco led, in turn, to a suppression of differential Basque culture, including banning the public use of the Basque language.

The Franco regime considered Biscay and Guipúzcoa as "traitor provinces" and cancelled their fueros. However the pro-Franco provinces of Álava and Navarre maintained a degree of autonomy unknown in the rest of Spain, with local telephone companies, provincial limited-bailiwick police forces (miñones in Alava, and Foral Police in Navarre), road works and some own taxes

The post-Franco Spanish Constitution of 1978 acknowledges "historical rights" and attempts compromise in the old conflict between centralism and federalism by the establishment of autonomous communities (such as Castile and León, Catalonia, Valencia, etc.). The provincial governments (diputación foral) were restored, but many of their powers were transferred to the new government of the Basque Country autonomous community, though the provinces still perform tax collection in their respective territories, coordinating with the Basque, Spanish and European governments.

Today, the act regulating the powers of the government of Navarre is the Amejoramiento del Fuero ("Betterment of the Fuero"), and the official name of Navarre is Comunidad Foral de Navarra, "foral" being the adjectival form of fuero.

The fuerismo of the 19th century called for autonomy within Spain. Today, Alavese foralismo strengthens the Alavese identity against what it considers excesses of Basque nationalism.

Private law

While Fueros have disappeared from Spanish administrative law (except for the Basque Country and Navarre), there are remnants of the old laws in family law. When the Civil Code was established in Spain (1888) some parts of it did not run in some regions. In places like Galicia and Catalonia, the marriage contracts and inheritance are still governed by local laws. This has led to peculiar forms of land distribution.

These laws are not uniform. For example, in Biscay, different rules regulate inheritance in the villas, than in the country towns (tierra llana). Modern jurists try to modernize the foral family laws while keeping with their spirit.

List of fueros

References

  1. ^ Adams, John A defense of the constitutions of government of the United States of America (1786) The Biscayan Fueros are discussed in his letter IV.
  2. ^ McAlister, Lyle N., Spain and Portugal in the New World. 1984, Univ of Minnesota Press, ISBN 0-8166-1216-1.
  3. ^ Inquisición at the Auñamendi Encyclopedia.

External links

Notes


1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

FUERO, a Spanish term, derived from the Latin forum. The Castilian use of the word in the sense of a right, privilege or charter is most probably to be traced to the Roman conventus juridici, otherwise known as jurisdictiones or fora, which in Pliny's time were already numerous in the Iberian peninsula. In each of these provincial fora the Roman magistrate, as is well known, was accustomed to pay all possible deference to the previously established common law of the district; and it was the privilege of every free subject to demand that he should be judged in accordance with the customs and usages of his proper forum. This was especially true in the case of the inhabitants of those towns which were in possession of the jus italicum. It is not, indeed, demonstrable, but there are many presumptions, besides some fragments of direct evidence, which make it more than probable that the old administrative arrangements both of the provinces and of the towns, but especially of the latter, remained practically undisturbed at the period of the Gothic occupation of Spain.' The Theodosian Code and the Breviary of Alaric alike seem to imply a continuance of the municipal system which had been established by the Romans; nor does the later Lex Visigothorum, though avowedly designed in some points to supersede the Roman law, appear to have contemplated any marked interference with the former fora, which were still to a large extent left to be regulated in the administration of justice by unwritten, immemorial, local custom. Little is known of the condition of the subject populations of the peninsula during the Arab occupation; but we are informed that the Christians were, sometimes at least, judged according to their own laws in separate tribunals presided over by Christian judges; 2 and the mere fact of the preservation of the name alcalde, an official whose functions corresponded so closely to those of the judex or defensor civitatis, is fitted to suggest that the old municipal fora, if much impaired, were not even then in all cases wholly destroyed. At all events when the word forum 3 begins to appear for the first time in documents of the 10th century in the sense of a liberty or 1 The nature of the evidence may be gathered from Savigny, Gesch. d. rom. Rechts. See especially i. _pp. 1 54, 2 59 seq.

2 Compare Lembke u. Schafer, Geschichte von Spanien, i. 314; ii. 117. 3 Or rather forus. See Ducange, s.v. privilege, it is generally implied that the thing so named is nothing new. The earliest extant written fuero is probably that which was granted to the province and town of Leon by Alphonso V. in 1020. It emanated from the king in a general council of the kingdom of Leon and Castile, and consisted of two separate parts; in the first 19 chapters were contained a series of statutes which were to be valid for the kingdom at large, while the rest of the document was simply a municipal charter.' But in neither portion does it in any sense mark a new legislative departure, unless in so far as it marks the beginning of the era of written charters for towns. The "fuero general" does not profess to supersede the consuetudines antiquorum jurium or Chindaswint's codification of these in the Lex Visigothorum; the "fuero municipal" is really for the most part but a resuscitation of usages formerly established, a recognition and definition of liberties and privileges that had long before been conceded or taken for granted. The right of the burgesses to self-government and self-taxation is acknowledged and confirmed, they, on the other hand, being held bound to a constitutional obedience and subjection to the sovereign, particularly to the payment of definite imperial taxes, and the rendering of a certain amount of military service (as the ancient municipia had been). Almost contemporaneous with this fuero of Leon was that granted to Najera (Naxera) by Sancho el Mayor of Navarre (ob. 1035), and confirmed, in 1076, by Alphonso VI.' Traces of others of perhaps even an earlier date are occasionally to be met with. In the fuero of Cardena, for example, granted by Ferdinand I. in 1039, reference is made to a previous forum Burgense (Burgos), which, however, has not been preserved, if, indeed, it ever had been reduced to writing at all. The phraseology of that of Sepulveda (1076) in like manner points back to an indefinitely remote antiquity.' Among the later fueros of the 11th century, the most important are those of Jaca (1064) and of Logrono (1095). The former of these, which was distinguished by the unusual largeness of its concessions, and by the careful minuteness of its details, rapidly extended to many places in the neighbourhood, while the latter charter was given also to Miranda by Alphonso VI., and was further extended in 1181 by Sancho el Sabio of Navarre to Vitoria, thus constituting one of the earliest written fora of the "Provincias Vascongadas." In the course of the 12th and 13th centuries the number of such documents increased very rapidly; that of Toledo especially, granted to the Mozarabic population in 1 101, but greatly enlarged and extended by Alphonso VII. (1118) and succeeding sovereigns, was used as a basis for many other Castilian fueros. Latterly the word fuero came to be used in Castile in a wider sense than before, as meaning a general code of laws; thus about the time of Saint Ferdinand the old Lex Visigothorum, then translated for the first time into the vernacular, was called the Fuero Juzgo, a name which was soon retranslated into the barbarous Latin of the period as Forum Judicum; 4 and among the compilations of Alphonso the Learned in like manner were an Espejo de Fueros and also the Fuero de las leyes, better known perhaps as the Fuero Real. The famous code known as the Ordenamiento Real de Alcald, or Fuero Viejo de Castilla, dates from a still later period. As the power of the Spanish crown was gradually concentrated and consolidated, royal pragmaticas began to take the place of constitutional laws; 1 Cap. xx. begins: "Constituimus etiam ut Legionensis civitas, quae depopulata fuit a Sarracenis in diebus patris mei Veremundi regis, repopulatur per hos foros subscriptos." 2 "Mando et concedo et confirmo ut ista civitas cum sua plebe et cum omnibus suis pertinentiis sub tali lege et sub tali foro maneat per saecula cuncta. Amen. Isti sunt fueros quae habuerunt in Naxera in diebus Sanctii regis et Gartiani regis." a "Ego Aldefonsus rex et uxor mea Agnes confirmamus ad Septempublica suo foro quod habuit in tempore antiquo de avolo meo et in tempore comitum Ferrando Gonzalez et comite Garcia Ferdinandez et comite Domno Santio." 4 This Latin is later even than that of Ferdinand, whose words are: "Statuo et mando quod Liber Judicum, quo ego misi Cordubam, translatetur in vulgarem et vocetur forum de Corduba ... et quod per saecula cuncta sit pro foro et nullus sit ausus istud forum aliter appellare nisi forum de Corduba, et jubeo et mando quod omnis morator et populator ... veniet ad judicium et ad forum de Corduba." the local fueros of the various districts slowly yielded before the superior force of imperialism; and only those of Navarre and the Basque provinces (see Basques) have had sufficient vitality to enable them to survive to comparatively modern times. While actually owning the lordship of the Castilian crown since about the middle of the 14th century, these provinces rigidly insisted upon. compliance with their consuetudinary law, and especially with. that which provided that the senor, before assuming the government, should personally appear before the assembly and swear to maintain the ancient constitutions. Each of the provinces mentioned had distinct sets of fueros, codified at different periods, and varying considerably as to details; the main features, however, were the same in all. Their rights, after having been recognized by successive Spanish sovereigns from Ferdinand theCatholic to Ferdinand VII., were, at the death of the latter in 1833, set aside by the government of Castaiios. The result was a civil war, which terminated in a renewed acknowledgment of the fueros by Isabel II. (1839). The provisional government of 1868 also promised to respect them, and similar pledges were given by the governments which succeeded. In consequence, however, of the Carlist rising of 1873-1876, the Basque fueros were finally extinguished in 1876. The history of the Foraes of the Portuguese towns, and of the Fors du Beam, is precisely analogous to that of the fueros of Castile.

Among the numerous works that more or less expressly deal with this subject, that of Marina (Ensayo historico-critico sobre la antigua legislacion y principales cuerpos legales de los reynos de Leon y Castilla) still continues to hold a high place. Reference may also. be made to Colmeiro's Curso de derecho politico segun la historic de Leon y de Castilla (Madrid, 1873); to Schafer's Geschichte von Spanien, ii. 418-428, iii. 293 seq.; and to Hallam's Middle Ages,. 'c.' iv.


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