Siete Partidas

The "Siete Partidas" (Seven-Part Code) or simply "Partidas" was a Castilian statutory code first compiled during the reign of Alfonso X of Castile (1252-1284), with the intent of establishing a uniform body of normative rules for the kingdom. The codified and compiled text was originally called the "Libro de las Leyes" (Book of Laws). It was not until the 14th century that it was given its present name, referring to the number of sections into which it is divided.

The Siete Partidas is considered Spain's most important contribution to the history of law. The Partidas had great significance in Latin America as well, where it was followed for centuries, up to the 1800s. Although the code concentrates on legislative issues, it has also been described as a "humanist encyclopedia," as it addresses philosophical, moral and theological topics as well, including the Greco-Roman, Judeo-Christian and Islamic viewpoints.citation|title=On the Probable Influence of Islam on Western Public and International Law|first=Marcel A.|last=Boisard|journal=International Journal of Middle East Studies|volume=11|issue=4|date=July 1980|pages=429-450 [435-6] ]

Background

Writing

According to one of the oldest versions of the "Partidas", it was written between June 26, 1256 and August 28, 1265 by a commission of the principal Castilian jurists of the day, under the personal direction of Alfonso X. However other time periods have been proposed: 1254 to 1261; 1256 to 1263; and 1251 to 1265. In any event, the majority of historians believe that it was not completed until 1265.

The traditional view, shared by historian Francisco Martínez Marina and philologist Antonio Solalinde, is that the Siete Partidas codices were written by a commission of jurists (or members of the chancellery), and the involvement of Alfonso X was likely limited to setting out the goals of the text and the subjects to be addressed, as well as personally reviewing and amending the work of the commission. The commission is thought to have been made up of: Master Jacobo, a legal scholar; Juan Alfonso, a civil law notary from León; a certain Master Roldán; and Fernando Martinez de Zamora (one of the first Castilian jurists).

During the 18th century it was popularly believed that the Partidas was exclusively written by Alfonso X. This position was championed by Jesuit historian and writer, Andrés Marcos Burriel (Padre Burriel). Nevertheless, a significant debate has arisen concerning the authorship of works associated with Alfonso X. Other texts of the same period (1254–1256) normally attributed to Alfonso X such as "el Setenario", "Fuero Real" and the "Espéculo" display pronounced similarities to each other and to the "Partidas". Despite scholarly efforts to determine the scope, relationships, and purpose of each of the texts, no consensus has been reached.

The attribution debate was principally sparked by Alfonso García-Gallo's 1951-52 article, "El "Libro de las Leyes" de Alfonso el Sabio. Del Espéculo a las Partidas" (The "Book of Laws" of Alfonso the Wise. From the Espéculo to the Partidas). The questions raised in the article were expanded in other, later works.

García-Gallo proposed that the "Partidas" was not the work of Alfonso X and that it was not finished during his reign, but rather was written in the 14th century, long after the learned king's death in 1284, and that it was a reworking of the "Espéculo". He based his position on the fact that the first reliable references to the "Partidas" in other texts date from the beginning of the 14th century, and that the source materials for the "Partidas" were not known in the Iberian peninsula until later than the date of composition claimed for the codex.

In any case, Alfonso X continues to be nominally credited as the author of the "Siete Partidas", or at least of the original version, whatever his role in its creation may have been, since the custom with great works of this type was to attribute them to the monarch or other ruler who commissioned them, even though it was known that they had no hand in the preparation (as was the case with the Code of Hammurabi, and Justinian's "Corpus Iuris Civilis").

Purpose

Despite its lengthy treatment of philosophical issues, some have maintained that the "Partidas" is intended as a legislative text rather than a work of legal theory—a view explicitly supported by the prologue, which indicates that it was created only so that it could be used to render legal judgments.

Yet, García-Gallo has contended that, the prologue notwithstanding, the "Siete Partidas" was rarely put into practice until over a century after it was written. Resistance to the "Partidas", especially among the Castilian nobility, led the Cortes (legislature) to enact the Ordinances of Zamora in 1274. These laws set qualifications for judges serving on the royal tribunal and restricted the application of the "Partidas" to the "pleitos del rey", that is, legal cases under the exclusive jurisdiction of the king. All other matters ("pleitos foreros") were governed by local laws or "fueros". It was not until the “late enactment” by Alfonso XI in 1378 that the "Partidas" became widely applied. Furthermore, opposition to the "Partidas" can explain the differences among the similar texts listed above.

In any case, if the "Partidas" was written as a legal code, its ultimate objective has been a matter of dispute. Alfonso X, in what was called the "fecho del imperio" ("affair of the empire"), had aggressively pursued the crown of the Holy Roman Empire. His purpose for creating the Siete Partidas may have been to create a universally valid legal text for the entire Empire. In support of this argument, Aquilino Iglesias claimed in 1996 that the "Partidas" contained no references to Castilian territorial organization.

Others, among them García-Gallo, argued by way of rebuttal that even though sometimes the role of the emperor appears higher than that of the monarchy, in other places the role of the monarchy appears higher than that of the emperor, and that furthermore the text was written in Spanish, rather than in Latin.

What is certain is that the "Partidas", including the prologue, makes no reference whatsoever to any intention to acquire the imperial crown. Moreover, some authors, such as Juan Escudero (a dissiciple of García-Gallo), have found references in the text to Castile's specific territorial organization, for example, "villas".

Therefore, it is generally believed that with the creation of the "Partidas", Alfonso X was trying to unify the kingdom's legal system, not by using the 'local' approach of his father Ferdinand III (that is, by granting the same "fuero" to various regions), but rather through a general code that applied to the entire country.

In this regard it has been argued that Alfonso X was moved by nascent national pride and a desire to establish Castilian as the common language of his kingdom when he commissioned and supported the work of the Castilian jurists and scholars in writing the "Siete Partidas".

Enactment

It is not known whether the "Siete Partidas" was enacted by Alfonso X. Some authors believe so, and assert that the overthrow of the learned king by his son Sancho IV would have suspended its applicability. In a similar vein, Gaspar Melchor de Jovellanos claimed in 1797 that the descendants of Sancho IV suppressed the document of enactment because the provisions of the "Partidas" raised doubts about their rights to the crown, since the "Partidas" established the right of representation in the succession to the throne.

Without taking away from the preceding argument, the "Partidas" undoubtedly acquired legal force under Alfonso XI, upon being incorporated in the "orden de prelación" by the first law of article 28 of the "Ordenamiento de Alcalá" of 1378. This fact is considered by those authors who do not believe that the "Partidas" was enacted by Alfonso X as a "late enactment".

Sources

The "Siete Partidas" can be characterised as a text of civil law or ius commune (based on Justinian Roman law, canon law, and feudal laws), alongside influences from Islamic law.

Its sources were diverse. Among the most important were the "Corpus Iuris Civilis" of Justinian; the works of the Roman glossators and commentators, for example Franciscus Accursius and Azzus; canon law texts like the Decrees of Gregory IX and the work of Saint Raimundo de Peñafort; the Islamic legal treatise "Villiyet" written in Islamic Spain; and some Castilian "fueros" and customs.

Older sources include philosophical works by Aristotle and Seneca; the Bible and texts by the Church Fathers; works by Isidore of Seville and Thomas Aquinas; the "Libri Feudorum" (compilation of Lombardic feudal law); the "Roles D´Olerons" (a collection of writings on commercial law); the "Doctrinal de los juicios" (Trial Manual) and the "Flores de Derecho" ("Flowers of law") by Maestro Jacobo, who also worked on the "Partidas"; and the "Margarita de los pleytos" by Fernando Martínez de Zamora.

tructure and content

The "Partidas" brings together all the jurisprudence of the era into a single, unified vision, and for that reason has been regarded as a "summa de derecho" (the highest and binding authority for deciding legal issues). It deals, among other things, with constitutional law, civil law, commercial law, criminal law, and trial law (both civil and criminal).

It was written in an elegant, literary Spanish style, inspired by a theological vision of the world. It contains a "Prologue", which lays out the object of the work, and seven parts, or books, called "partidas", each of which starts with a letter of the name of the learned king, thus forming an acrostic of the name 'Alfonso':

#"A seruicio de Dios"... (For the service of God...)
#"La ffe cathólica"... (The Catholic faith...)
#"Fizo Nuestro Sennor Dios"... (Our Lord God did...)
#"Onras sennaladas"... (Special rites...)
#"Nascen entre los ommmes"... (Among men there arise...)
#"Sesudamente dixeron"... (The ancient wise men sagely said...)
#"Oluidança et atreuimiento"... (Forgetfulness and boldness...)

Each "partida" is divided into "articles" (182 in total), and these are composed of "laws" (2802 in all).

Its provisions are normally accompanied by references to authors and texts, allegories and examples, and, especially, a reasoned explanation of their origins and background—etymological, religious, philosophical and historical—for they are not meant to be merely prescriptive laws.

The contradictions that exist between the various provisions were the result of the way the task of composition was organized, whereby each "partida" was written by a different person.

First "Partida"

The first "partida" consists of 24 articles ("títulos") comprising 516 laws. It opens by recognizing the sources of law (in article I), which is a rather symbolic introduction for the work. It describes the law, and explains the consequences of obeying both just and unjust laws; it refers to the way in which good laws are formulated, relating the power of the government to the authority of knowledge (1,1,9); and it classifies laws into 'canonical' and 'secular' categories (1,1,3).

It mentions the qualities that a good legislator should possess: an unwavering mindfulness of God, a love of justice, a knowledge of the law, and a willingness to change laws if necessary (1,1,11). Finally, it discusses the authority of precedent, and sets out the requirements for its legal validity, that is, is it in agreement with the law, outside the law, or contrary to the law?

It next turns its attention to canon law, that is, law relating to ecclesiastical matters. It refers to Catholic dogma and sacraments, the organization of the Church, rights and responsibilities of the clergy, and the right of asylum in churches.

There are important differences between versions of this "partida". These are the result of a revision, which was carried out in order to limit the powers of the monarchy, given the rejection by the nobility of the original text of the first "partida", which reaffirms the power of the monarchy over them. This situation could also explain the so-called "late enactment".

econd "Partida"

The second "partida" consists of 31 articles comprising 359 laws. It deals with "temporal power" and public law, that is, government and those involved in it, such as emperors, kings, and other persons of influence. It makes a distinction between spiritual and temporal power, recognizing a duality in the structure of power and a harmonious relation between both spheres.

It sets out important provisions of political law (2, 1, 5), with reference to the king, the origin and goal of power, and the relationship between leadership and obedience, based in faith and reason. It deals with the rights and duties of the king towards God, the people, and the country, and the rights and duties of the people toward God, the king, and the country. It also speaks about the royal family and the rules of succession, setting out the conditions for acquiring the throne.

This "partida" ends with a discussion of the university (2, 21, 1), one of the most important late medieval institutions.

Third "Partida"

The third "partida" consists of 32 articles comprising 543 laws. It covers justice and its administration, including civil process and imperial judicial power. Legal procedure is its primary theme: the people who participate in trials and the rules by which they are carried out.

Regarding lawsuits, it discusses the plaintiff and defendant; judges (3,4,3) and lawyers (3,4,6); time limits and means of proof, among them notarized documents (3,18,1), and, therefore, notaries (3,19,1); sentences; and appeals.

It concludes with property rights (3,28,1), recognizing the existence of certain goods in the public domain; possession (3,30,1); the statute of limitations; usucaption, a method by which ownership of property can be gained by lapse of time; and easement, the right of use over the real property of another.

Fourth "Partida"

The fourth "partida" consists of 27 articles comprising 256 laws. Its subject is family law, as well as other permanent relationships between people, other than matrimony and biological kinship.

It deals with engagement (4,1,2); matrimony (4,2,1) and the capacity, form, and validity of the canon law to which it is subject; divorce (which does not refer to the dissolution of the matrimonial bond, but rather with separation or the cessation of cohabitation); legitimate and illegitimate patrimony (4,14,1); "parens patriae" (the rights of the state to intervene in the interests of minor children); slavery (4,23,8), described as the "vilest thing in this world" after sin itself; the civil status of persons (free and slave; noble and commoner; clergy and laity; legitimate and illegitimate; Christian, Moor, and Jew; male and female); serfdom and fiefs; and the bonds of friendship.

Fifth "Partida"

The fifth "partida" consists of 15 titles comprising 374 laws. Is subject is private law, which pertains to the common legal acts and contracts that people participate in throughout their lives.

It deals with various kinds of contracts: loans, prohibiting usury, that is, the charging of interest; "comodato" (a contract giving someone the use of something, with the obligation to return it); "deposito" (a contract in which someone agrees to hold and keep secure something for another person); "donación" (a contract by which one person gives something to another outright, expecting nothing in return); "compraventa" (a contract governing a sale, which follows Roman law in requiring that the method by which the seller acquired the object be specified); "permuta" (a contract governing the exchange of goods); "arrendamiento" (a rental contract); contracts governing companies and corporations; verbal contracts; contracts of surety, mortgages, and collateral.

It also deals with payment and the surrender of property. Likewise, it contains important rules for commercial law, governing persons engaged in business, and commercial contracts.

ixth "Partida"

The sixth "partida" consists of 19 articles comprising 272 laws. It addresses inheritance, guardianship, and the rights of minors.

Article 1 gives general information about wills. It defines two kinds of wills: "testamentum nuncupativum", a verbal will, and "testamentum in scriptis", a written will. Both kinds of wills must generally be made in the presence of seven witnesses who must be men of good reputation over the age of fourteen (6,1,1). An intersex individual ("hermaphroditus") can not witness a will unless this person is more like a man than a woman (6,1,10). Article 1 prohibits any person who is mute or deaf from birth (6,1,13), permanently exiled, condemned to death (6,1,15), or in a religious order (6,1, 17) from making a will. Finally, Article 1 address the ways in which wills can be annulled.

Article 2 addresses procedures regarding wills made in secret. Articles 3 through 6 describe the appointment of heirs. They forbid women who marry less than a year after the death of their husband from being heirs (6,3,5). They suggest that estates be divided into twelve parts (6,3,16) and address conditions that can be placed on heirs by a will. They also explain various ways that substitute heirs can be appointed if the original heirs should die or refuse to comply with the conditions laid out in the will and describe how potential heirs can take inventory of an estate before deciding to accept an inheritance.

Articles 7 and 8 describe disinheritance. A father is allowed to disinherit his children if they defame or physically attack him. A father can disinherit his son if the son becomes a wizard, buffoon, Muslim, or Jew, or if he fights wild beasts for money, does not pay a ransom or bail for the father, or lies with any of the father’s mistresses (6,7,4-7). A man may disinherit his brothers for any reason or no reason (6,7,12). Someone who has been disinherited can challenge and break a will if the disinheritance is deemed unlawful.

Articles 9 through 11 concern bequests of property. Article 12 addresses codicils. Article 13 addresses intestacy. It establishes three degrees of relationship: descendants, such as sons and grandsons, ascendants, such as fathers and grandfathers, and collaterals, such as brothers and uncles. When someone dies intestate, his property passes first to descendants, then to ascendants, and then to collaterals (6,13,2-5). Articles 14 and 15 describe the delivery and partitioning of an estate.

Article 16 describes guardianship of orphans. A guardian, called a "tutor", for a child under fourteen can be appointed by an ascendant or by a judge (6,16,2). A mother cannot be the guardian of her children if she remarries after the death of their father (6,16,5). Guardians for those over fourteen but younger than 25 are called "curatores" (6,16,13). Guardians must care for the property of their wards, teach them to read and write, and represent them in court (6,16,15-17).

Article 17 specifies ways that someone can avoid becoming a guardian. Knights, teachers, philosophers, manual laborers, the illiterate, and enemies of the child’s father can not be appointed guardian against their wishes (6,17,3). Article 18 describes how a guardian can be removed from office.

Article 19 provides the right of "restitutio in integrum" for minors who suffer damage to their property through their own negligence. A person under 25 can demand restitution for losses caused by their recklessness (6,19,2). Furthermore, a boy under fourteen cannot be prosecuted for adultery or licentious conduct (6,19,4). Churches, kings, and councils also have the ability to demand restitution for losses they endure due to the fraud or negligence of others (6,19,10).

eventh "Partida"

The seventh and final "partida" consists of 34 articles, comprising 363 laws. It deals with criminal law and criminal trials, that is, with crimes and criminal procedure (on the inquisitorial model). It also discusses Muslim and Jewish law.

It allows torture when there is insufficient evidence in a criminal case (7,30,1). However, it only permits torture against those of bad reputation or inferior rank. It prohibits torture of children under fourteen, pregnant women, knights, and doctors of law or science (7,30,2). Furthermore, it states that a person can only be tortured if "common rumor" and at least one credible witness suggest that he or she committed a crime. It requires that torture be conducted in the presence of a judge and a notary and prohibits the judge from mentioning any other person by name during the torture (7,30,3). If someone confesses to a crime during torture, it requires that the confession be confirmed later in the absence of any coercion (7,30,4).

A large part of the text is concerned with various crimes, known as "yerros", among them treason against the king; misrepresentation; homicide, divided into three types: criminal (intentional) homicide, accidental homicide, and homicide in self-defence; crimes against honour; robbery, theft, and damages—clearly distinguishing between robbery (stealing with violence) and theft (stealing without violence); frauds and swindles; adultery, incest, rape, sodomy, procuring, and witchcraft; heresy, suicide, and blasphemy.

It distinguishes between acts committed by those who cannot be held responsible, such as the insane or children under ten, and those done by the competent. Furthermore, it recognizes the difference between attempted and completed crimes (7,31,2) and makes allowance for certain forms of instigation and complicity. It also details exculpatory, mitigating, and aggravating circumstances (7,31,8). It addresses prisons and establishes rules for wardens (7,29,8).

The seventh "partida" asserts that the purpose of punishment (7,31,1) is both retribution and deterrence. It establishes the public character of punitive actions and specifies seven kinds of punishment (7,31,4):
#Death or loss of a limb
#Life of labor
#Life imprisonment
#Permanent exile with confiscation of property
#Permanent exile without confiscation of property
#Infamy or loss of office
#Public flagellation, wounding, or naked exhibition while covered with honey to attract flies

The first four punishments are for serious crimes while the last three are for minor crimes.

The "Siete Partidas", imitating the Digest of Justinian and the Decretals, ends with an article about the rules of law.

Editions

In addition to the diversity of manuscripts and other copies produced after the appearance of the printing press in the 15th century, there existed three main editions of the "Siete Partidas":

* An edition annotated by Alonso Díaz de Montalvo, published in Seville, 1491. There were eight copies by 1528.
* An edition annotated by Gregorio López, published in Salamanca, 1555. There were 15 copies by 1855. This edition received legitimacy by royal decree on September 7, 1555, and was the version most used in Hispanic America.
* An edition from the Real Academia de la Historia, published in 1807. Declared official by sovereign dictate on March 8, 1818.

Influence and importance

The "Siete Partidas", as the centerpiece of legislative activity under Alfonso X, represents the high point of the acceptance of common law (from Roman and canonical traditions) in Spain. Moreover, it constitutes one of the most important judicial works of the Middle Ages.

The artfulness of the presentation of the material and the beauty of its language garnered considerable prestige for the work both inside and outside of Castile, and the work was known throughout the Christian West. It served as a text of study in many universities of the day, and it was translated into several languages, including Catalan, Portuguese, Galician and English.

Likewise, it was one of the most important legal texts for the governing of Castile (given that it regulated so many matters) and, later, the Spanish empire. From the beginnings of European expansion into the New World, it was introduced to Spanish America along with Castilian law, and to Brazil, with Portuguese law.

Its contents encompass almost all aspects of life, from political law to civil to criminal, continuing on to family law, succession, legal matters, and legal proceedings. All that is missing are matters considered in subsequent law, such as post-tridentine canon law, the "Leyes de Toro", dealing with hereditary debt, and matters specific to Spanish America, governed by indigenous law.

The "Siete Partidas" was in force in Latin America until the modern codification movement (1822-1916); until the beginning of the 19th century, they were even in effect in the parts of the United States, such as Louisiana, that had previously belonged to the Spanish empire and used civil law. Furthermore, they served as the legal foundation for the formation of the governing "juntas" that were established in both Spain and Spanish America after the imprisonment of King Fernando VII during the Peninsular War.

Finally, although the codification movement put an end to the direct application of the "Partidas", the legal standards they contain have not disappeared. Most of the principles of the "Partidas" can be found in the laws of Latin American countries, especially in their civil codes.

Notes

References

*University of Pennsylvania Press (1989); Joseph F. O'Callaghan (1999). [http://libro.uca.edu/cortes/copy.htm "The Cortes of Castile-León"; Chapt 9, "The Cortes and the Government of the Realm"] . Retrieved May 21 2006.

Bibliography

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* Arias Bonet, Juan Antonio: "La primera Partida y el problema de sus diferentes versiones a la luz del manuscrito del British Museum", en "Alfonso X el Sabio: Primera Partida según el manuscrito Add. 20.787 del British Museum".- Valladolid: Universidad de Valladolid.- 1975. p. XLVII-CIII. ISBN 84-600-6717-3
* Arias Bonet, Juan Antonio: "Sobre presuntas fuentes de las Partidas", en "Revista de la Facultad de Derecho de la Universidad Complutense".- Número extraordinario: julio de 1985.- p. 11-23.
* Bravo Lira, Bernardino: "Vigencia de las Siete Partidas en Chile", en "Derecho común y derecho propio en el Nuevo Mundo".- Santiago de Chile: Jurídica de Chile.- 1989. p. 89-142.
* Craddock, Jerry: "La cronología de las obras legislativas de Alfonso X el Sabio", en "Anuario de Historia del Derecho español", Nº 51: 1981.- p. 365-418.
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* García-Gallo, Alfonso: "El "Libro de las Leyes" de Alfonso el Sabio. Del espéculo a las Partidas", en "Anuario de Historia del Derecho español", Nº 21-22: 1951-1952.- p. 345-528.
* García-Gallo, Alfonso: "Los enigmas de las Partidas", en "VII Centenario de las Partidas del Rey Sabio", Instituto de España.- 1963.
* García-Gallo, Alfonso: "Nuevas observaciones sobre la obra legislativa de Alfonso X", en "Anuario de Historia del Derecho español", Nº 46: 1976. p. 509-570.
* García-Gallo, Alfonso: "La obra legislativa de Alfonso X. Hechos e hipótesis", en "Anuario de Historia del Derecho español", Nº 54: 1984.
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* Solalinde, Antonio: "Intervención de Alfonso X en la redacción de sus obras", en "Revista de Filología Española", Nº 2: 1915.- p. 283-288.

ee also

* Fuero Juzgo
* Fuero Real

External links

* "Las Siete Partidas del Rey Don Alfonso X El Sabio", 1807 edition. [http://fama2.us.es/fde/lasSietePartidasEd1807T1.pdf Tomo I] , [http://fama2.us.es/fde/lasSietePartidasEd1807T2.pdf II] and [http://fama2.us.es/fde/lasSietePartidasEd1807T3.pdf III] (PDF version).
* [http://faculty.washington.edu/petersen/alfonso/7part_1.htm Monograph on the "Siete Partidas" of Alfonso X the Wise]
* [http://faculty.washington.edu/petersen/alfonso/lawtrans.htm "Legislative works of Alfonso X, the Wise"]
* [http://eprints.ens-lsh.fr/archive/00000064/01/SETENARIO-CADIX_27.11.pdf "De nuevo sobre la fecha del Setenario"] (PDF version)