DOI Page / Citation link:
https://doi.org/10.11588/diglit.47347#0073
THE SPANISH SUCCESSION.
57
fore, abstain from deducing from the nullity of which we
have been treating the consequences that might be drawn
from it; for we have still reasons enough left to prove that the
auto acordado cannot be applied in any manner to the present
case. We must, therefore, entirely approve the conduct of the
Cortes in 1789, when, setting aside the question of the legality
or nullity of the auto acordado, they contented themselves
with pronouncing its repeal, with the approbation of the king.
It is scarcely to be believed that this honest and prudent
act of the Cortes in 1789 could have served for an argu-
ment in behalf of the formal validity of the auto acordado.
Why, says one, what need would there have been to abolish
the auto acordado, if it had not been considered as a law in
full force ? Here, then, is an attempt to deduce, as it were,
ex post facto, in favour of the legality of the auto acordado,
a proof which it was impossible to draw from the facts them-
selves. But those who employ this argument have not
considered that a law which, on account of the informality
of its enactment is, in a legal sense a nullity, and consequently
of no more force than if it had never existed, may never-
theless exist as an illegal fact which it is necessary to set
aside \ It must not, therefore, be concluded from the term
abrogation (abrogation J, employed by the legislative power
in abolishing the auto acordado, that it intended to acknow-
ledge its previous validity ; but that as the nation was accus-
tomed to recognize on ordinary occasions a supreme au-
thority in its sovereigns, the legislature forbore to designate
with all the energy of the proper word, a despotic act ema-
nating from one of the predecessors of the reigning Mo-
narch2. Hence, in 1789, there was no reason for using a
1 It must not be forgotten that the auto acordado had been inserted in the
Nueva Recopilacion as auto acordado 5. tit. 7- lib. 5. So that it had some ap-
pearance of validity.
* In the Petition of the Cortes, and in the Opinion of the Prelates, the term
used is derogation and not abrogation. See pp. 62 and 64. There is evidently
57
fore, abstain from deducing from the nullity of which we
have been treating the consequences that might be drawn
from it; for we have still reasons enough left to prove that the
auto acordado cannot be applied in any manner to the present
case. We must, therefore, entirely approve the conduct of the
Cortes in 1789, when, setting aside the question of the legality
or nullity of the auto acordado, they contented themselves
with pronouncing its repeal, with the approbation of the king.
It is scarcely to be believed that this honest and prudent
act of the Cortes in 1789 could have served for an argu-
ment in behalf of the formal validity of the auto acordado.
Why, says one, what need would there have been to abolish
the auto acordado, if it had not been considered as a law in
full force ? Here, then, is an attempt to deduce, as it were,
ex post facto, in favour of the legality of the auto acordado,
a proof which it was impossible to draw from the facts them-
selves. But those who employ this argument have not
considered that a law which, on account of the informality
of its enactment is, in a legal sense a nullity, and consequently
of no more force than if it had never existed, may never-
theless exist as an illegal fact which it is necessary to set
aside \ It must not, therefore, be concluded from the term
abrogation (abrogation J, employed by the legislative power
in abolishing the auto acordado, that it intended to acknow-
ledge its previous validity ; but that as the nation was accus-
tomed to recognize on ordinary occasions a supreme au-
thority in its sovereigns, the legislature forbore to designate
with all the energy of the proper word, a despotic act ema-
nating from one of the predecessors of the reigning Mo-
narch2. Hence, in 1789, there was no reason for using a
1 It must not be forgotten that the auto acordado had been inserted in the
Nueva Recopilacion as auto acordado 5. tit. 7- lib. 5. So that it had some ap-
pearance of validity.
* In the Petition of the Cortes, and in the Opinion of the Prelates, the term
used is derogation and not abrogation. See pp. 62 and 64. There is evidently