DOI Seite / Zitierlink:
https://doi.org/10.11588/diglit.47347#0135
APPENDIX.
119
ground, as we have demonstrated by the last wills and the
laws of the kings of Spain, of the Austrian branch of Habs-
burg, and by the elevation of Philip V. to the throne.
A much more specious objection has been raised against
the validity of las Siete Partidas, that law which we have
termed the key-stone of the ancient legislation, touching
the order of succession to the throne. It has been alleged
that the dispositions of las Siete Partidas were abrogated by
the author of that law, Alphonso X. himself, in excluding
from the succession the princes of La Cerda, the children of
his elder son, Don Fernando, in favour of his younger son,
Don Sancho.
But those who use this argument against the validity of
the law of las Partidas have not perceived that, even though
it should be admitted to be conclusive, no inference what-
ever could thence be drawn in behalf of the validity of the
auto acordado of 1713; for that act, as we have shown under
No. XII., was already abrogated, de facto, by its author,
Philip V. At any rate, the case is one of a totally
different nature, for the law of las Siete Partidas, law II.
tit. v. par. 2, contains two different dispositions : one
concerns the order of cognatic succession, the other the
right of representation. The dispositions relative to the
cognatic succession do not confirm a new principle of law;
they are nothing but a written repetition of the ancient
common law observed in practice. The law of representa-
tion, on the contrary, was unknown until then in legislation,
as well as in practice, and in the public law of the state. It
was, therefore, a real innovation borrowed from the Roman
law, for which king Alphonso had a high respect, as is proved
by the whole substance of las Siete Partidas. The pre-
ference given by the law of representation to the sons of
the first born who dies before his father over the other sons
of the latter, had not yet been admitted in the succession to
119
ground, as we have demonstrated by the last wills and the
laws of the kings of Spain, of the Austrian branch of Habs-
burg, and by the elevation of Philip V. to the throne.
A much more specious objection has been raised against
the validity of las Siete Partidas, that law which we have
termed the key-stone of the ancient legislation, touching
the order of succession to the throne. It has been alleged
that the dispositions of las Siete Partidas were abrogated by
the author of that law, Alphonso X. himself, in excluding
from the succession the princes of La Cerda, the children of
his elder son, Don Fernando, in favour of his younger son,
Don Sancho.
But those who use this argument against the validity of
the law of las Partidas have not perceived that, even though
it should be admitted to be conclusive, no inference what-
ever could thence be drawn in behalf of the validity of the
auto acordado of 1713; for that act, as we have shown under
No. XII., was already abrogated, de facto, by its author,
Philip V. At any rate, the case is one of a totally
different nature, for the law of las Siete Partidas, law II.
tit. v. par. 2, contains two different dispositions : one
concerns the order of cognatic succession, the other the
right of representation. The dispositions relative to the
cognatic succession do not confirm a new principle of law;
they are nothing but a written repetition of the ancient
common law observed in practice. The law of representa-
tion, on the contrary, was unknown until then in legislation,
as well as in practice, and in the public law of the state. It
was, therefore, a real innovation borrowed from the Roman
law, for which king Alphonso had a high respect, as is proved
by the whole substance of las Siete Partidas. The pre-
ference given by the law of representation to the sons of
the first born who dies before his father over the other sons
of the latter, had not yet been admitted in the succession to