1911 Encyclopædia Britannica/Fuero

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.^[1] 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 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.^[4] 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.^[5] Traces of others of perhaps even an earlier date are occasionally to be met with. In the fuero of Cardeña, 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.^[6] Among the later fueros of the 11th century, the most important are those of Jaca (1064) and of Logroño (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 1101, 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;^[7] 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 Alcalá, 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; 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 señor, 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 the Catholic to Ferdinand VII., were, at the death of the latter in 1833, set aside by the government of Castaños. 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 Béarn, 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 político según la historia de Leon y de Castilla (Madrid, 1873); to Schäfer’s Geschichte von Spanien, ii. 418-428, iii. 293 seq.; and to Hallam’s Middle Ages, c. iv.

1. The nature of the evidence may be gathered from Savigny, Gesch. d. röm. Rechts. See especially i. pp. 154, 259 seq.
2. Compare Lembke u. Schäfer, Geschichte von Spanien, i. 314; ii. 117.
3. Or rather forus. See Ducange, s.v.
4. Cap. xx. begins: “Constituimus etiam ut Legionensis civitas, quae depopulata fuit a Sarracenis in diebus patris mei Veremundi regis, repopulatur per hos foros subscriptos.”
5. “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.”
6. “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.”
7. 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.”