Text 48:
SPAIN
1256-1265
Las Siete Partidas (the Seven Parts or Books):
the principle of freedom
Alfonso X, king of Castile from 1252 to 1284, was a man steeped in three cultures: the
Christian, the Judaic and the Islamic. Dubbed "the Wise" or "the Learned", he was a
scholar and astronomer (his planetary tables, the Tablas Alfonsíes, determined the exact
duration of the year to within 26 seconds) and between 1256 and 1264 he set his hand
to a vast legal encyclopaedia in seven books, based largely on Roman Law (seven
being a "most noble" figure, "much honoured by the sages of antiquity"). These Siete
Partidas are still regarded as constituting one of the most important codes in Spanish
legal history. The seventh part, which relates mainly to penal law, to the legal status of
Muslims and Jews, and to crimes of a religious nature, lays down in law 34, rules 1 and
2, the very principle of freedom.
And we say that the rule incumbent upon judges is that they must all assist liberty,
because it is a friend to nature; because it is beloved not only of men, but also of
animals.
It is quite another thing to say that servitude is something men detest naturally: it is not
only the bondsman who lives in servitude, but also the man who is not free to leave the
place where he lives. And the wise have even said that man is not free, nor freed from
his chains, whom one has let out of prison and yet holds by the hand or kindly stands
watch over.
Source :
PECES-BARBA Gregorio. "Derecho positivo de los derechos humanos"
Ed. Debate, Madrid 1987
Translation :
Council of Europe
Text 49:
SPAIN
1526 and 1542
Charles I
On the freedom of the Indians: the "Decree" of 1526
and the "New Laws" of 1542
The conquest of the "New World" of the West Indies led Spain to create, alongside its
main, ruling Royal Council, a specialist governmental body known as the Council of the
Indies, which came into being in 1524. At Charles I's bidding, this new council embarked
upon a substantial legislative undertaking. It was not, however, always possible to
translate the great quality of its work into reality. In 1526, the decree on slavery in the
Indies forbade the capture of Indians and their enslavement or sale by anyone, on pain
of severe punishment, loss of office and heavy fines.
The "New Laws" of 20 November 1542, prompted by the activity of the Dominican
Bartolomé de Las Casas (Seville 1474 - Madrid 1566) - who, in his Short Account of the
Destruction of the Indies of 1542 denounced the violence which was still being inflicted
upon the Indians - are evidence of the practical resistance encountered by the Decree of
1526. In the "New Laws", Charles I reasserts the freedom of the Indians and the
prohibition of forced labour which the encomienda system imposed on them. He deals,
in particular, with the specific problem of pearl-fishing (see also document 32).
Decree of Charles I on slavery in the Indies (1526):
that Indians are free and not to be held in bondage
In conformity with what has been established regarding the freedom of the
Indians: It is our will, and we hereby order, that no Representative of Justice, Governor,
Captain or Aedile, nor any other person of any other class, dignity, function or quality
whatsoever, in time of peace or war, even if that war be just and ordered by Us or by our
government, shall dare to make captive the native Indians of our Indies, Islands or
Ocean lands, now discovered or yet to be discovered, or possess them as slaves, even
if the said islands or lands be ones which We or our government have possessed or now
possess, even if it had been declared that one might make war against them justly, kill,
arrest or capture them, except in such cases and nations which, by the present law,
have been authorised and enjoined to do so. For this reason, all licences and
declarations made to this date, which are not included in these laws, and those which
might be given or made and which are not decreed or made by Us with the express
mention of this law, are revoked and suspended in so far as the captivity and
enslavement of Indians in time of war is concerned, even if that war be just, or be
provoked by them, and also in so far as the ransom of other Indians who might have
been captured in case of war between them is concerned.
Likewise, we order that no person in time of war or outside such time, may take, occupy,
sell or exchange as a slave any Indian, nor hold him as such, even if he has obtained
him during a just war or by purchase, ransom, barter or exchange, or in any other
manner, even in the case of Indians whom the natives themselves hold, have held, or
may hold among them as a slave, and if a person is found having captured an Indian or
keeping him as a slave, he shall forfeit all his goods to our Exchequer, and the Indian or
Indians shall be restored to their own lands and natures with their full, natural freedom,
at the expense of those who have thus captured them or held them in slavery. And we
order our justices especially to take care to verify what has been established and to
punish strictly, in accordance with this law, with a penalty of loss of office and of one
hundred thousand maravedis to our Exchequer those who act contrary to it and are
negligent in its execution.
The new laws of the Indies (20 November 1542)
And because it has always been and remains our chief will and pledge that the Indians
be preserved and increase, and that they be instructed and taught in the articles of our
Holy Catholic Faith and well treated as free persons and vassals to us, which they are,
we charge and order the members of our Council [of the Indies] that they pay great
attention and give special care to all that concerns the preservation and good
government and treatment of these Indians and that they pay heed how to accomplish
and execute what is and will be ordered by Us for the good government of our Indies
and the administration of justice in those lands, and that they act so that it is observed,
accomplished and executed without let, fail or lack of consideration.
Because one of the most important things which must guide us in the Chanceries
[Audiencias] is to pay special attention to the good treatment of the Indians and to their
preservation, we order that excesses and ill-treatment of them by governors or
individuals always be reported, and also that it be reported how the Ordinances and
Instructions given have been applied, for they are made to protect the good treatment of
the Indians; and for all the excesses which might have been or which might be
henceforth, special care is to be given to remedy these by punishing the guilty
rigorously, in accordance with justice; and there shall be no place in the disputes
between Indians or against them for ordinary trials, nor shall these be prolonged, as is
often the case, on account of the malice of certain advocates and attorneys, but they are
to be determined summarily, observing such customs and usages as do not clearly
constitute injustices, and the Chanceries are to take care that this is also observed by
the other lower judges.
Furthermore, we command and ordain that henceforth, neither because of war nor for
any other cause, even in the case of rebellion, nor by ransom or in any other manner,
shall an Indian be reduced to slavery, and we wish them to be treated as vassals of our
Crown of Castile, for such they are.
No one shall be able to use Indians for his personal service or in any fashion whatsoever
contrary to their will.
As we have ordered that it be provided that henceforth the Indians shall in no wise be
slaves, so with regard to those who until now have been so against reason and law and
against the provisions and instructions laid down, we order and command that the
Chanceries, after summoning the parties, without there being any doubt, shall summarily
and briefly, on the evidence alone, restore to them their freedom if the persons who
possess them do not present titles to prove that they hold and possess them lawfully.
And since the Indians may not remain slaves unjustly for want of persons who demand
what has been established above, we therefore order that the Chanceries appoint
persons who pursue this cause for the Indians, and meet the costs of the Court, and are
men of confidence and diligence.
And because we have learnt that pearl-fishing has been carried out without the good
conditions appropriate to it, and the deaths of many Indians and Negroes have ensued,
we order that no Indian shall be made to perform this kind of work against his will, upon
pain of death; and also that the bishop and the judge who are leaving for Venezuela
shall ordain what they consider necessary for the slaves who take part in that fishing,
both Indian and negro, to be protected and to halt these deaths. And if they consider that
the Indians and the Negroes cannot be protected from lethal danger, pearl-fishing is to
end, for, as is reasonable, we appreciate much more the preservation of their lives than
the material gain which pearls may bring us.
Source :
PECES-BARBA Op. cit. (doc. 39)
Translation :
Council of Europe
Text 50:
SPAIN
1812
The preliminary address of Agustín Argüelles and the
1812 Constitution: Civil Liberties
In 1812, whilst the "War of Independence" saw Joseph Bonaparte - brother of Napoleon
and, by the latter's will, king of Spain - pitted against a popular resistance led by local
juntas, the Cortes, ancient political assemblies dating back in the various states of Spain
to the Middle Ages, met at Cadiz. Vesting national sovereignty in itself, the 1812 Cortes
drafted a new constitution intended to replace that of 1808, which had been inspired by
the principles of the French Revolution but imposed by the Napoleonic regime.
Agustín Argüelles (Ribadesella, Asturias, 1776 - Madrid, 1844), dubbed "the Divine" for
the quality of his oratory, was the main author of this new constitution. Though he was
concerned to respect the force of Catholicism - priests and monks were at that moment
rousing the people against the French troops - and the hereditary character of the
monarchy, he nonetheless wished to assert the principle of universal suffrage (if need
be, indirect) and to guarantee civil liberties.
It is this latter concept he is concerned with here. And it is this same concept we find in
the articles of the 1812 Constitution, the first of a liberal cast, which, though it does not
contain a declaration of rights in the strict sense of the term, proclaims national
sovereignty and the right of the members of the Constituent Assembly to enact basic
laws, and affirms certain rights, such as judicial guarantees and the independence of the
courts.
Preliminary address on the 1812 constitution
by Agustín Argüelles
[...] It merely remains now to ensure the civil liberty of the individuals who make up [the
nation]. The close interconnection and mutual support which must exist throughout the
whole structure of the Constitution require that the civil liberty of Spaniards must be as
well guaranteed in the basic law of the State as the political liberty of citizens. Public
propriety and the stability of social institutions not only may allow, but at times also
demand, that the exercise of the political freedom of the individuals who make up a
nation be suspended or reduced. But civil liberty is incompatible with any restriction not
directed against a definite person by virtue of a legal process instituted and concluded in
accordance with law previously promulgated. Thus, in a free State, there may be
persons who, on account of particular circumstances, do not contribute directly or
indirectly to the formation of the positive laws; yet the latter may not, however, recognise
any difference of condition or class between individuals of that same State. The law
must be the same for all; and there can be no distinction of persons in its application.
The constitution of 19 March 1812
[…]
Article 2
The Spanish nation is free and independent and is not, and may not be, the property of
any family or person.
[…]
Article 4
The nation is obliged (has an obligation) to preserve and protect by wise and just Laws
the civil liberty, property and other legitimate rights of all the individuals it comprises.
[…]
Article 242
The power to apply the laws in civil and criminal matters rests exclusively with the
courts.
[…]
Article 280
No Spaniard may be deprived of the right to settle his disputes by recourse to arbitrators
elected by the parties to the dispute.
Source :
ARGUËLLES Augustin de. "Discorso preliminar a la constitucion de 1812" Ed.
Centro de Estudios constitucionales. Madrid 1981
Translation :
Council of Europe
Text 51:
SPAIN
12 April 1869
Emilio Castelar
Speech on religious freedom and the separation of
Church and State
The problem of the relations between church and state, a most difficult subject, has
always been couched in very different terms in the various countries and has often had
significant repercussions on their populations. The strong Catholic tradition of Spain led
to some violent clashes on the subject in that country, and in the nineteenth century the
issue of the separation of church and state often proved inflammatory. In 1869, in the
wake of the so-called "Gloriosa" - the revolution which brought about the downfall of
Isabella II in 1868 - and after the appearance of the revolutionary juntas and the
restoration of control by the military in the persons of Generals Serrano and Prim, the
question of the form of government was on the agenda. Rejecting a republican regime,
the generals nonetheless granted various freedoms, including the freedoms of
association and coalition; they also found themselves faced with the problem of religious
freedom and that of the separation of church and state. In the speech printed below, the
historian and journalist Emilio Castelar, an ardent republican and brilliant orator, took up
a position in the debate which profoundly influenced the drafting of the Constitution of 5
June 1869. This marks an important development in the conception of human rights in
Spain.
[...] I have said that the Catholic Church, organised as you organise it, organised as a
State power, can only bring us serious conflict and turmoil because, within the organism
of free States, the Catholic Church, with its ideal of authority, its ideal of infallibility, and
its ambition of spreading its ideas to all peoples, cannot but be the cause of continuous
turmoil in all minds and of a constant threat to all rights.
[...] As freedom grows, so material ties slacken; as material ties slacken, so moral bonds
are tightened. It is, therefore, necessary, nay indispensable, if a free society is to be able
to live, that it maintain great bonds of ideas, that it recognise its duties - duties imposed
not by the civil authority or the army, but by its own reason, its own conscience.
[...] And yet, in human consciousness, the dogma of the protection of the Churches by
the State is definitively at an end. The State has no religion, it can have no religion, it
must have no religion. The State does not go to confession, the State does not partake
of holy communion, the State does not die. I should like to beg Señor Manterola kindly to
tell me what corner of the Valley of Josaphat will be occupied by the soul of the State
called Spain on the Day of Judgment.
[...] Great is the religion of power, but the religion of love is greater; great is the religion
of justice, but the religion of merciful forgiveness is greater; and I come here in the name
of the Gospel to ask you to write into your Basic Code the freedom of religion - that is to
say, liberty, fraternity, equality among all men.
Source :
Espana. Cortes Constituyentes (1869-1871)
" Monarquia y democratia en las Cortes de 1869 : discursos
parlamentarios/ seleccion de textos y estudio preliminar de Antonio Maria
Calero" Ed. Centro de Estudios Constitucionales", Madrid 1987
Translation :
Council of Europe
Text 52:
SPAIN
9 December 1931
The Constitution of the Spanish Republic: the
affirmation of individual liberties
The 1931 Constitution, which had its origins in the creation of the Second Republic after
the departure of King Alfonso XIII (April 1931), was drawn up in a context of political
uncertainty, but with a view to a profound transformation of society. Spain became "a
democratic republic of workers of all classes", without an official religion, in which
authority emanated from the people. It once again took an important step in the definition
of human rights by recognising individual and collective guarantees for the first time,
together with economic, social and cultural rights. This democratic, secular constitution
remained in force for only a few years: it was swept away by the rapid changes of
government between the Right in 1933 and the Frente Popular in 1936 and by the
tragedy of the Spanish Civil War.
Constitution of the Spanish Republic
of 9 December 1931
[…]
Article 25
The following may not be a basis for privilege before the law: nature, descent, sex, social
class, wealth, political ideas or religious beliefs.
[…]
Article 27
Freedom of conscience and the right freely to profess and practise any religion are
guaranteed on Spanish territory, while respecting the demands of public morality.
Cemeteries will be subject exclusively to civil jurisdiction. There can be no separation of
burial areas on religious grounds.
All religious denominations may practise their form of worship privately. Public
manifestations of worship must in every case be authorised by the Government.
No one may be forced officially to declare his religious beliefs. This condition will not be
a ground for modifying civil or political personality, except in the case of what is laid
down in the Constitution with regard to the appointment of the President of the Council of
Ministers.
[…]
Article 31
Any Spaniard may move freely within the national territory and choose his place of
residence and domicile. He may not be compelled to move from that place without the
existence of an enforceable judgement.
The right to emigrate or immigrate is recognised and is subject only to the limitations
contained in the law.
A special law will determine the guarantees laid down in cases of expulsion of aliens
from Spanish territory.
The domicile of any Spaniard or alien residing in Spain is inviolable. No one may enter it
without a warrant from the competent judge. The search for papers or objects will always
be conducted in the presence of the person concerned or of a member of his family or,
failing this, of two neighbours from the same village as the person concerned.
Article 33
All persons are free to choose their occupation. Freedom of industry and trade is
recognised, except for the limitations imposed by law on economic and social grounds of
public interest.
Article 34
All persons have the right to express their ideas and opinions freely, using any means of
propagation whatever, without being subject to prior censorship.
In no case may the publication of books or newspapers be halted without a warrant from
the competent judge.
No suspension of a newspaper may be decreed without a binding judgement to that
effect.
Source :
PECES-BARBA, Op. cit. (Text 39)
Translation :
Council of Europe
Text 53:
SPAIN
6 December 1978
The Constitution of 1978
Fundamental rights in accordance with the Universal
Declaration of Human Rights
Having been designated to succeed General Franco, Prince Juan Carlos (b. Rome
1938), the grandson of Alfonso XIII, became king of Spain on 20 November 1975 on the
death of the Caudillo. He undertook at that point to transform Spain gradually into a
democracy. The country was allowed to decide the form of its new institutions by way of
a referendum, and the Cortes (parliament) elected in 1977 was able to draw up the
constitution, which was widely approved by popular vote on 6 December 1978. Inspired
by German and French examples, that constitution brought Spain into the Western
democratic system as a state under the rule of law, and laid down fundamental rights
which, both by their content and the form of protection afforded to them, were clearly in
accordance with the Universal Declaration of Human Rights of 1948.
Spanish constitution of 6 December 1978
Article 14
All Spaniards are equal before the law, and there may be no discrimination by reason of
birth, race, sex, religion, opinion, or other personal or social condition or circumstance.
Article 15
All citizens have the right to life and to physical and moral integrity, and they may not be
subjected to torture or to inhuman or degrading punishment or treatment. The death
sentence is abolished, except in the cases laid down by military penal laws in time of
war.
Article 16
1.
Ideological and religious freedom, and freedom of worship for both individuals
and communities are guaranteed, with no other limitation upon their manifestations than
that necessary for the maintenance of public order protected by law.
2.
No one may be compelled to declare his ideology, religion or beliefs ...
Article 17
1.
All persons have the right to freedom and security. No one may be deprived of
his liberty, except in conformity with what is laid down in this article and in the forms
provided by law.
[...]
3.
All arrested persons must be informed immediately, in a manner understandable
to them, of their rights and the reasons for their detention, and they may not be
compelled to make a statement. The prisoner is guaranteed the assistance of a lawyer
as part of police and judicial procedures, in the terms laid down by the law.
Article 18
1.
The right to honour, to personal and familial privacy and to one's image is
guaranteed.
2.
The home is inviolable. No entry to, or search of, a person's home may be made
without the consent of the rightful occupant, or a legal warrant, except where a person is
apprehended in flagrante delicto.
Article 20
1.
The following rights are recognised and protected:
a.
to express and freely to disseminate thoughts, ideas and opinions by
speech, writing, or any other means of reproduction.
Source :
PECES-BARBA Op. cit. (text 39)
Translation :
Council of Europe