A Medieval and Early Modern Democracy—The Basques and their Fueros

 

 

        I am sharing an edited excerpt from a 1917 article in the Harvard Law Review which outlines very well the Basque fueros or privileges which they held under the Castilian and then Spanish monarchies.  The Basque aspiration for self-government is not a product of 19^th century nationalism or of revolutionary, anti-authoritarian or anti-colonial thinking, but the continuance of a tradition of semi-democratic self-government that reaches back to the Middle Ages and was in turn probably the formalisation of their old tribal form of governance. Thus, not only does their language preserve something of pre-Indo-European Europe for us, their old form of government also gives us a window on that corner of Europe before empires, monarchies, and dynasties.

 

        The author of the piece is William T. Strong..  It is found in the Harvard Law Review, vol. 30, #4 (Feb.. 1917) on pp. 325-333.  It is part of a longer study titled, “Germanic and Moorish Elements of the Spanish Civil Code” edited by Peter J. Hamilton.

 

 

The Basque Fueros

 

The Basques are the most interesting of all the peoples of Spain. No contrast could be more marked than that between these active mountaineers and the haughty grandees of Castile and Andalusia. The love of freedom which proverbially finds its home among the mountains has characterized from the earliest time the men of the Basque provinces, and has manifested itself in the preservation of special political privileges almost to the present day. During all the turmoil that followed the Teutonic invasions, the Basques remained always free, if not completely independent; and while the rival Christian kingdoms of Castile and Navarre grew up around them, they still preserved their liberties. In the fourteenth century the lordship of Biscay, which included the territory of the Basques, became connected with the crown of Castile, but through a treaty by which the privileges of the people of the lordship were preserved. The term "Basque provinces" designates the three divisions, Gipúzcoa, Vizcaya (Biscay) and Álava [modern Basque: Gipuzkoa, Bizkaia, Araba].  On account of their peculiar privileges, they have also been known as the "exempt provinces."  Their fueros may be traced to two sources: (I) the Fueros Generales and Fueros de Albedrio, which had their birth in the necessities of pastoral life; (2) laws copied from the ancient Latin municipalities.

 

The fueros of Vizcaya are the most democratic in character.  They grew up in the contests of the inhabitants with their counts and were probably first collected into a code by Count Juan in 1371. After the final union of Biscay with Castile they were recast (1526), completed and confirmed by the Emperor Charles V.  This final connection of the Basque land with Castile was effected in 1379 on the principle of personal union. The King of Castile became Lord of Vizcaya, and it was by this latter title that the Basques continued to know the Spanish king to the present century. In assuming the lordship of Viscaya, Don Juan, the Castilian king who first united the dominions, swore at Guernica [modern Basque: Gernika] that he and his successors would maintain the "fueros, customs, franchises and liberties" of the land. The obligation to take this oath in person at the same place long remained binding on the Spanish sovereigns, at least in theory; but in practice the journey, though announced, was invariably postponed to mañana, the morrow that never comes.

 

From the time of the union royal policy was steadily directed toward the establishment of more real authority over the Basques, but the latter clung desperately, and for the most part successfully, to the original principle. A leading article of the Basque fueros exempted the people from taxes not voted by themselves. Henry IV, the successor of Don Juan, sought to violate this principle, but the bearer of his demands was slain by the Guipúzcoans. An attempt of the same king to bestow Basque lands on court favorites was followed by his formal deposition from the lordship of Biscay and the acknowledgment of his sister, Isabella of Castile, in 1473. The oath taken by Isabella is interesting both for its local colouring and for its constitutional importance:

 

“I, as Princess and Lady of the said towns, lowlands and lordship of Biscay, with all places adjoining and adhering to the same, bind myself once, twice, thrice; once, twice and thrice; once, twice and thrice; according to the fuero and custom of Spain, on the hands of Gomez Manriquez, knight, man and noble, who receives this my homage; and I swear to our Lord God, to the holy Virgin Mary and on the sign of the cross, which corporally I touch with my right hand, and on the words of the Holy Gospels, in whatsoever place they may be, to maintain firm, good, valid and binding now and for all time to come, the said privilege, general and special, fueros, usages and customs, franchises and liberties of the said towns and lowlands of the said country and lordship of Biscay and of all the places adjoining and adhering to the same."

 

Isabella respected the Biscayan fueros; but when the absolute monarchy had been thoroughly established in Spain, an attempt was made by Philip III, in 1601, to levy duties by royal ordinance. The resistance of the deputies raised so threatening a storm that the king was glad to withdraw the ordinance.A more recent affair of the same character is suggestive of incidents in American history. Under Godoy, in 1804, a stamp tax was imposed on the Basques to aid the general revenue. But the deputies, having declared the law an infringement of their liberties, ordered the stamps burned by the common hangman under the tree of Guernica.  And finally, the devotion of the Basques to the Carlist cause, which has been so conspicuous during this century, is due in a great measure to gratitude for the opposition raised by the first Don Carlos, in the council of state, to the projects of Ferdinand VII, which involved infringement of the Biscayan fueros.

 

The organization under which the practically autonomous government of the Basque provinces was carried on was thoroughly pervaded with primitive democracy. The leading features of this organization in Vizcaya, where it was most complex, were as follows. At the foundation of the system were two assemblies, the one ordinary, called the junta general, the other extraordinary, known as the merindad. The junta general consisted of deputies from the towns, villages and hamlets of the lordship, together with the corregidor and three lieutenant corregidores appointed by the crown, but with no vote in the assembly, and six regidores (minor magistrates) and two popular tribunes appointed by the assembly.  The royal corregidor had to be a native Basque, and his functions were strictly those of intermediary between the local and the central authority. The supreme power was invested in the junta general, by which the regimiento, or magistracy, was appointed. The deputies assembled every two years, on even years, under the oak of Guernica, near the village of that name. Here, in the presence of the regimiento, sitting on stone seats, the 108 procuradores stood with uncovered heads and took the oath to maintain the fueros and respect the rights of their lord. The procuradores then proceeded to the adjoining chapel, reviewed the list of the deputies, or "good men," as they were called, and opened the session. Priests and lawyers were ineligible as deputies. One lawyer (letrado) was summoned in the quality of asesor, but without the right to vote. "He was considered a consulting authority," says Webster, "and no other member of the profession was allowed to even enter the town where the junta was held, during the sessions." The sessions were open and free to everybody, not secret as in Guipúzcoa.  The debates were indiscriminately in Basque and Spanish but were published only in Spanish. The regular sessions of the regimiento (composed of eighteen members) took place twice a year. The executive of the province was called the deputación de gobierno. It controlled the acts of the corregidor sent to Madrid and all the administrative, military, and judicial measures. It superintended the collection of taxes laid by the junta of Guernica. It decided as to the proofs of nobility and domicile and exercised a general supervision over such acts of the corregidor as touched the fueros.

 

        Omitting minor points, the essential features of the Basque privileges may be summarized as follows:

1. Freedom of pasturage, passage and commerce in all the territory belonging to the general community.

2. Complete personal independence for every individual.  This principle was carried even into civil process. The person of the debtor was inviolable, as well as his house and his horses.

3. The right of self-defense against everyone—the lord or seigneur, laic or ecclesiastic, pope, or emperor. The killing of the royal messenger, mentioned above, was regarded as a proper exercise of this right, and the three provinces joined in protecting the slayer as defender of the fueros.

4. Exemption from the obligation to do military service, except (1) in time of war, (2) in their own province and (3) at the command of the junta. This service would correspond to the German Landsturm, which can only be called out in time of invasion. The junta of Guipúzcoa required everyone between sixteen and sixty years of age, and capable of bearing arms, to have firearms and to be ready for mobilization. Recruits could not be led beyond "el arbol malato plantado en Luyando" in Vizcaya, without the consent of the junta, and even with that consent they received pay for three months in advance or a sufficient guarantee to secure it.

5. The absolute exclusion of royal troops from the country except in case of a few towns. This exception is rarely mentioned.

6. The Basque contingents of the royal army always to have Basque officers. Gonsalvo de Córdova, after some experience in the matter, said that he would rather command wild lions than Basques.

7. Exemption from every royal tax or impost. The money voted by the juntas to the King of Spain was a free gift (donativo), never a tribute. This gift was voted only in extraordinary cases, and only when all the other questions of the government had been settled. The only exception to the rule—the only tax levied (and that only in Guipúzcoa)—was the alcabad, upon the importation of foreign wines and the sale of iron in the province. This, however, hardly brought in 42,000 reals. The sale of salt and tobacco was free, and there was no tax on timber or contracts or inheritance.

8. Entire freedom of commerce, both internal and external.  The Ebro, on the south, was the only line of any restriction, and this line was subject to all sorts of special arrangements.  The right of free commerce was always a source of especial contention between the Basques and the royal authority, and it was only by the utmost vigilance that it was preserved against the jealousy of the kings and of the other provinces.

9. The enjoyment of the rank and privileges of hidalgos.  All who could prove Basque parentage for two generations claimed to be "noble." The logic was this: The Basque was a freeman in law and fact; but the only man thus free was the noble: therefore, the Basque was noble. (As decapitation was reserved for nobles exclusively, an old Spanish writer says that in more than one case nobility was established simply by evidence that an ancestor had been decapitated.) This so-called nobility meant little more than exemption from servitude and taxation, but it furnishes an element in the pride of the peasant and the poorer classes.'  Compare the meeting of Don Quixote with the Biscayan:  "What, me no gentleman! " cried the wrathy peasant, " I swear thou be a liar, as me be Christian. If thou throw away lance and draw sword, me will make no more of thee than cat does of mouse. Me will show thee me be Biscayan and gentleman by land, gentleman by sea, gentleman in spite of devil; and thou lie if thou say contrary."

 

On the side of private law there was a marked distinction between the system of the towns and that of the country region (terra lana). The towns were regarded as pertaining in a certain sense to the crown, and accordingly the principles of the Castilian code were recognized. In the country the Basque fueros were maintained in their purity. As an example of the difference may be cited the rule as to testamentary disposition of property. In the towns the father's right of bequest was limited to a third or a fifth of the property; in the country he might leave his estate to a single child, provided he secured to each of the other children "one of the highest trees, a tile, and ten pence in money."  Again, under the fuero de persón de los parientes del muerto a murderer was exempt from prosecution in the terra lana if forgiven by the relatives of the victim.

 

A curious feature in the field of family relations was the custom of concubinage. This was a legitimate practice for both laymen and clergy and was based on considerations of "the public good and gain in population."  In the fueros of Vizcaya occurred the following passage:

 

Inasmuch as the clergy, being obliged to lead a life of celibacy, are continually committing divers immoralities etc., and endangering the peace of families, - now, in order that they (the curas) shall have no excuse for corrupting our wives and daughters in future, they shall be allowed to maintain one or two concubines (barraganas) in their houses."

 

The relations arising from the practice of concubinage were minutely determined by the laws. No reproach or loss of privilege attached to the offspring. The children of a barragana preceded collateral heirs in the succession to the father's estate, and in the absence of any specific provision for them they could even share the inheritance with the children of the wife.'  An attempt in the thirteenth century to crush out the practice, especially among the clergy, met with little success; and when, in the time of Don Pedro (1351), it was in a measure done away with, prostitution took its place.

 

The governmental organization and fueros of Vizcaya were substantially those of all the provinces of the Spanish Basques.  The differences are of slight importance. For example, while the general junta of Biscay met once in every two years, as stated, that of Guipúzcoa met every year, and that of Álava three times a year. If the corregidor of Guipúzcoa was absent, the presidency of the junta belonged to the alcalde of the city or borough where it is assembled. The Hermandad of Guipúzcoa was a republican federation composed of about one hundred cities, all having the right to become the seat of the general junta. This junta was composed of sixty-six civil officers, called procuradores, or commissioners, also under the presidency of a corregidor. In Álava the constitution was nearly the same. A peculiar feature here was the right enjoyed by the wives of the hidalgos of voting in the junta.  In the details of political and social life, in short, the fueros of the Basques varied from valley to valley and village to village as greatly as does the language, of which there are twenty-three varieties and eight dialects. Institutions and language agree in marking these mountaineers as a peculiar people.

 

In resisting the constitutional liberalism of the present century, the Basques lost their fueros. When the constitution of 1812 was put in operation, they perceived that under this system their special privileges would be threatened, and it did not require the formal abolition of their fueros by the Madrid government, in 1833, to throw the mountaineers into a passionate support of Don Carlos. Failing to comprehend the general liberty which constitutionalism involved, they saw in the Liberals only the assailants of their ancient rights. The Conservatives and Clericals represented the old order in church and state, and Don Carlos stood for legitimacy and divine right. Though in the heat of war this sovereign whom they recognized showed small respect for their precious fueros, they trusted that he, like all his absolute predecessors, would in peace restore them as before. In the war that lasted from 1833 to 1839, the Basques fought as freedom-loving mountaineers have always fought, but victory was not for them.  By the treaty of Vergara, however, though they recognized Isabella, they retained their fueros. The second Carlist War, 1872-76, had a different outcome. After the suppression of the insurrection, at the accession of Alfonso XII, the abolition of the fueros was decreed by the Cortes, and, after a noisy opposition, was put into execution. The three provinces, Vizcaya, Guipúzcoa, and Álava were required to furnish annually 2,050 conscripts to the Spanish army and to pay their share of the national taxes; but they, as well as Navarre, were given a delay of ten years. At the end of this period, i.e. in 1886, they negotiated with Sr. Sagasta for a new delay of one year, and in the course of that winter Queen Christina made it indefinite in time. This was only a bit of state policy, to soothe the Carlists, and its effect was evident when, in 1887, even the most devoted adherents to the cause of the pretender joined in a cordial reception to the queen on her visit to their country. A compromise with the central government, by which $300,000 is paid as an equivalent of all taxation, has left these mountaineers a measure of independence in civil and municipal administration. But the autonomous institutions for which they fought and bled are gone. Formerly they were a republic de facto, and they themselves used the name republica...

[Note: The 1978 Constitution of Spain established regional self-government.  The Basques have managed to negotiate increasing authority over various spheres, in effect restoring some of the spirit of the fueros.]