PAPERS ON HISTORY OF LAW #1 (1994)


CONTENTS

José SANCHEZ-ARCILLA BERNAL: "About the concept of vulgar Law in Indias"

The phenomenon of the vulgarization of Law in Indias, scarcely considered by historiography, is of major importance. The fact that in most of the american territories justice administration was in hands of individuals without a specific juridical instruction, and the rare use of juridical texts, being these limited to some procedural practises, lead to a very poor technical level in the aplication of Law in Indias during the Spanish rule. Professor SANCHEZ-ARCILLA undertakes a revision of the thesis proposed by the leading authors who have studied this subject and proposes research lines to follow.

Rogelio PEREZ-BUSTAMANTE: "The government of the Italian States under the Austrias: Naples, Sicily, Sardinia and Milan (1517-1700). The role of the Grandes de España"

The idea of the Universal Spanish Monarchy has always been subjected to the tension of two opposed tendencies: to centralizedly structuring the Empire or to maintain the different territories institutions. Drawing his attention to the Italian States under the Habsburgs, the author underlines the importance of the role the Castilian nobility had on these territories’ government, and provides an appendix in which he enumerates the grandes de España who received the titles of Napoles and Sicily Virrey, and Milan’s Gobernador.

Emilio DE BENITO: "The royal Junta de Bureo"

Stablished by Carlos I to order the staff of royal servants, the Real Junta de Bureo hasn’t been to the day the subject of a thorough study. Leaning therefore exclusively on non published documentation, the author undertakes a detailed analysis on this institution political and administrative organization, paying special attention to its jurisdictional competence.

Rafael SANCHEZ DOMINGO: "The corregimiento of the seven Merindades de Castilla-Vieja"

Territorial circunscriptions of the Iberian Peninsula in Middle and Modern Ages is an intrincate subject still in need of a global consideration. Castilla-Vieja is one of the many districts in which the Castilian Reign is divided. Already mentioned in the Xth century, this intermediate administrative circunscription consolidates itself along the Modern Age, divided in seven Merindades.

Alain DESRAYAUD: "Exploratory study on law enforcement and the Crown’s sovereignty in civil law (France, XIIIth-XVIIIth centuries)"

Marck of the sovereignty for Bodin, and one of the first instruments for the building of the State, the normative capacity of the king defines, after the French Revolution, the Absolutist Monarchy. Being public law the proper field for the royal dispositions, custom keeps its prevalence in private law. But from the XVI age on, a certain proliferation of dispositions in this field is observed. Professor DESRAYAUD annalizes the effectivity of these norms, faced by the obstacle of custom, old jurisdictional practices and the innertia of the officials in charge of its application.

Emilio DE LA CRUZ AGUILAR: "Nebrija and law at the 5th Centennial of his Grammar"

1506. Nebrija, from the University of Salamanca, dares to throw a critic, with the humanist’s authority, against the figure of the glossator Accursio, and his not always wholly rigorous use of the language. In memory of the author of the first spanish grammar, Dr DE LA CRUZ proposes some reflections on the need for the teaching of Law of transmitting this concern for the language, and to procure for the students a precise and depurated vocabulary, in the technical as well as in a general level.

José María PUYOL MONTERO: "The Juntas de Negocios Contenciosos of José I"

The study of institutions mustn’t overlook those institutions who didn’t have a leading role in history, even the less when their secondary situation is not due to the lack of important competences, but only to the short period in which they were in force. This is the case for these Juntas of Contentious bussiness, who came to provisionally substitute the Consejo de Castilla, and exerced the competences of the Supreme Court of Justice in the bonapartist gouvernment. Their structure is the subject of a detailed analysis, based on unpublished documental sources.

Pedro A. PORRAS ARBOLEDAS: "Fuero of Sabiote"

Original sources publication is always occasion of deep interest for the historiographical research. The finding of the Fuero (municipal code of laws) of Sabiote throws light on the repopulation politics followed in this area during the XIIIth century, who originally was given the Fuero de Ubeda. The complete edition of the text -including its 887 articles and 23 mejorías-- is complemented with an exhaustive collate with the Fuero de Baeza. The author maintains this source as the one from which Sabiote’s Fuero comes, but bearing in mind that the copying was made with a systemathic text.


PAPERS ON HISTORY OF LAW #2 (1995)


CONTENTS

Alfonso MURILLO VILLAR: "Motivation of the sentence in Roman Procedural Law"

Stablished in the XIXth century, the obligation to give ground to the sentence has been imposed in the present Procedural Law. Nevertheless, the rationalist impulse is not the only reason that induces to justify the dispositive part of a sentence. The roman texts prove, in many occasions, that many of those other reasons have been felt in the Classic Age, and that the motivation of the sentence was the common practice, being his formal regulation, in the Postclassic Age, a manifestation of the prevailing vulgarization. In his approach, the author doesn’t use the sources in order to look for the origins of the present procedural systems, but to bring out the true dimension of the problem in the Roman Procedural Law.

Manlio BELLOMO: "From Country to Cities: the new sites for Science and Power"

To keep up as a specific science, History of Law mustn’t seclude in reducing approachs of its own subjects; like the others social sciences, it needs to be opened to new settings in order to integrate them in the study of the juridical. The author of Società e istituzione dal medieoevo agli inizi dell’età moderna (Catania, 1976), conceiving History of Law as History of the Juridical Science, writes about the process that, from the XIIth century on, tilts the center of society from the country to the cities. Wealth, social status, are doomed to a radical change; so the science, that only becomes proper science in the City, the "sapientia" keeping secluded in the monasteries.

Pedro A. PORRAS ARBOLEDAS: "The politics of repopulation in Alfonso XIth’s Mancha Santiaguista"

Sparcely populated area, La Mancha owes its name precisely to this feature. The repopulation politics deployed by Alfonso the XIth in these territories during the central period of the XIVth century, mostly given in seigniory to the Orden de Santiago, are the subject of this study, that includes the edition of the original texts of the titles used in several of these localities, where the literary adventures of Don Quijote will take place two centuries later.

Fernando SUAREZ BILBAO: "Jewish community and judicial proceedings in Low Middle Ages"

Jewish community in the Iberian Peninsula was protected by the Crown on the basis of the precariousness and provisionality of its existence as such community. Being the Jew patrimony of the Crown, his presence was admitted until the advent of his voluntary conversion, on the understanding that this was the natural course. The author engages the analysis of the privileges granted to this community and the own Jewish jurisdiction, and tries to determine the real enforcement of the Christian jurisdiction over the jew population in the last centuries of the Middle Age.

Manuel TORRES AGUILAR: "The prerequisite of age for the access to Public Administration"

From the XVth century on, the progressive specialization of the Castilian Public Administration leads to a more attentive selection of the civil servants. One of the followed criterions was to require a certain age to carry out some functions. The leading authors of the epoch present their ideas on this subject, furthering a view on the meaning that the general concept of "coming of age" had in the time.

María Luz ALONSO: "Ways to the revision of the sentence in the Inquisition proceedings"

Not widely known are the legal resources of the summoned against the Inquisition Courts; even less the ones he had in the final stage of the proceedings, once the sentence was pronounced. The Visita General , general inspection drawn by the Consejo de Castilla to these Courts gives way to the revision of many trials. Fully documented, this work of Drª. María Luz Alonso throws light on this unsuspected facet of the proceedings of the Santo Oficio.

José María PUYOL MONTERO: "The creation of the High Court and Counsil (Consejo Reunido ) for Spain and the Indias"

Full of political upheavals, 1809 is also the year in which appears the Consejo Reunido, counsil whose short existence testifies to the last ups and downs of the Old Régime institutions, and the intervention of the Junta Central. Analysis of this institution organic structure through the hundred of proceedings preserved in the National Historic Archive.

Juan Antonio ALEJANDRE: "Unsuspected sides of the Inquisition: two peculiar cases"

Human weakness plays the leading role in two curious procedures of the Inquisition Court in Seville. The crime figure is the sollicitation while hearing in confession, and the cases have been extracted from the documentation gathered by the author for his book El veneno de Dios. La Inquisición de Sevilla ante el delito de solicitación en confesión (Madrid, 1994)

María Jesús TORQUEMADA: "Wifes and mistresses in the Inquisition"

Closing our "Miscelánea" section, this reflection on the condition of women for the magistrates of the Inquisition Courts, infered by three unusual proceedings presented to the Sevillian Court.

Rogelio PEREZ-BUSTAMANTE: "The fuero nuevo of Alcalá de Henares"

This text first publication will undoubtedly contribute to the progress of the research aimed towards the resolution of the General and Local Law dialectics in Modern and Contemporary Ages. The "Fuero Nuevo " was given to the town of Alcalá de Henares by Cardinal Cisneros in 1509. Besides a concordance table with the old Fuero , the author also provides a systematic material classification.


PAPERS ON HISTORY OF LAW #3 (1996)


CONTENTS

Pedro ORTEGO GIL: "Penal admonitions in the criminal jurisdiction practice of the Royal Audience of Galicia (17th and 18th centuries)"

In one of his works, Michel FOUCAULT remarks the singularizing mechanisms of a justice administration that progressively widens its competence and deviates it from the simple behaviour, to expand its jurisdiction over the body and soul of the accused. One of these judicial mechanisms is the penal admonition, or "apercibimiento", that is added to the criminal sentence so the accused guides and orders not only his behaviour, but his life as a whole, introducing a moral tingeing in the sentence. In order to outline this figure, not explicitly included in the royal law system, attention must be payed to the courts practice. The author, within the framework of a further study on the criminal jurisprudence of the Royal Audience of Galicia, annalyses several series of hundreds of sentences to offer a shrewd view of the penal "apercibimiento" in the last two centuries of the Old Regime.

Pedro Andrés PORRAS ARBOLEDAS: "The financial management of the Castilian town council in the last Middle Age"

Part of an exhaustive study of the Castilian town council as an institution, for which the author has examined more than ten thousand entries of council resolutions taken from the oldest books of acts among those preserved, the present work is centered on the municipality financial resources administration. With an introduction dealing with the historiographical treatment given to the municipality, PORRAS ARBOLEDAS offers a profound annalysis of the main sources of economic management: registers, licenses and mercies, mostly used at the municipality discrection.

José María VALLEJO GARCIA HEVIA: "Campomanes (1723-1802), the biography of a jurist and a historian"

Key figure of the Spanish Enlightenment, the politician Campomanes reunites talents as a jurist and as a historian. The biographical covering of VALLEJO GARCIA-HEVIA shows the range of vital strategies displayed by this Asturian of humble but noble origins, making the point on the intrincate relation between power and knowledge imposed by the 18th century.

José BONO: "The diplomatical study of notarial deeds and notarial History of Law"

Notary José BONO presents an exposition on the episthemology of these two disciplines based on the notarial deeds and methodological directions for its treatment.

Rafael SANCHEZ DOMINGO: "The Verviesca Fuero versus Fuero Real. Origins and procedural innovations"

The Fuero of Verviesca was granted by Blanca of Portugal, Alfonso the Xth’s granddaughter, to the villa of Verviesca, belonging to her seigniory. Rafael SANCHEZ DOMINGO draws a comparison of this text with the Fuero Real, main product of Alfonso the Xth political and juridical project.

Jesús-María NAVALPOTRO Y SANCHEZ-PEINADO: "The shaping of the Junta of Revenues of Madrid (1680)"

The blooming of the many Juntas that spurt out all along the 17th century is one of the institutional phenomenons less known by the historiography. Their high number and the confusion of their functions may be blamed for this situation. The author points his view over one of them, the Junta of Revenues of Madrid, and provides a selection of documents that determine its bringing out in the year of 1680.

Enrique SAN MIGUEL: "Spain and its crowns. A political concept in the Hispanic Austrias last wills"

Spain as a project. Spain as culmination of the visigothic legitimacy proccess of reconstruction. Spain as the Catholic Monarchy vocational calling. Spain as imperial aspiration. Spain, therefore, as a traumatic questioning of self-identity. Leaning on the traditional historiography, the author tracks the presence of the idea of Spain in the Austrias’ wills.

Fernando SUAREZ BILBAO: "Some juridical questions on the Schism of Occident"

The declaration of nullity threw upon the election of Clemente the VIIth by the cardinals of the Papal College, opens in 1378 the Schism of Occident. Far from staying restraint to the theological scope, the Schism provokes the intervention of the Occidental monarchies, that try to impose their view in a demostration of their rising power, and that, in the case of the Hispanic crowns, required the joint activity of all of them. The documental appendix gathers the letters exchanged between Juan the Ist of Castilia and Pedro the IVth of Aragon in order to achieve this common goal.

Emilio DE BENITO FRAILE: "About the Laws of the Adelantados Mayores"

The concern in the study of the legal sources of questions such as the authorship and the date of elaboration for the ascertainment of their right sense is highly evident in this work, that researches these questions as the keys for the correct interpretation of the corpus of Laws of the Adelantados Mayores, five laws claimed to Alfonso the Xth, and whose contents outline a public institution, the Adelantados, that represents the victory of the nobility over the royal power. The documental appendix contains the transcription of the manuscript preserved in El Escorial, collated to texts from the Speculo.

María Luz ALONSO: "The Floranes "memoirs" over Pedro Núñez de Avendaño"

A marginal figure because of his dissident attitude in regard to the Spanish nascent History of Law, the erudite Rafael de Floranes, less legalistic than his contemporaries, collects in the last quarter of the 18th century the memoirs of the most renowned jurisconsults of the 15th and 16th centuries. M.L. ALONSO rescues from oblivion the ones devoted to Pedro Núñez de Avendaño, jurist in the Chamber of the Infantado.


PAPERS ON HISTORY OF LAW #4 (1997)


CONTENTS

José Luis BERMEJO CABRERO: "Two approximations to the contraband in the Spain of the Old Regime"

The phenomenon of contraband is one of the most severe problems for the Public Finance of the Old Regime. Many efforts were made to fight it, as is revealed by the many dispositions produced in the penal and militar fields mainly. Despite the importance of the problems raised by this phenomenon, it hasn’t been to the day the subject of a thorough study. The author presents here several important works written in the XVIII century on this matter: the Treatise on Contraband of Pedro González Salcedo, and several memorials written by Administration officials and private individuals. The article is completed with an appendix that reunites these documents.

María Luz ALONSO: "The consent for the marriage of the Royal Family members (On the validity of the Carlos IIIth’s Royal Decree, 1776)

Endorsed with abundant bibliography, this article is centered in the study of the special licenses provided to princes and princesses in the Royal Decree of 1776. It also annalyses the effective validity of this disposition, and the problems raised by its insertion in the present day constitutional system.

José María PUYOL MONTERO: "Abolition of the gibbet penalty in Spain"

The proccess that ends with the suppression of the gibbet penalty from the Spanish legislation by the king Fernando VII in 1832 is long and full of accidents. Great importance is given to the reception of the Enlightment experts in criminal law, mainly Beccaria and Bentham, who have an important influence in Spain. The author offers a full study of this process, paying attention to the doctrinal developments as well as the criminal legislation of the period.

Raquel MEDINA PLANA: "The Ultramar deputies in the Trienio (1820-23). Twelve notes for a proposal of study"

The reflection on the episthemological and methodological aspects of researching constitutes a previous and essential matter for the researcher when confronted with his work. Starting from this conviction, the author presents the basis for a proposal of study on the Ultramar representatives of the Spanish Congress, in a period, the liberal Trienio (1820-23), when the mouvements that will emancipate almost all America from the metropoli are precisely having place.

Soha ABBOUD HAGGAR: "The Leyes de Moros are the book of Al-Tafri"

The PhD ABBOUD HAGGAR, a visitant proffesor of Arab Language and Litterature at the University of Salamanca, proves the real origins of the Leyes de Moros, the only treatise about Islamic jurisprudence available in spanish until our age, and supposedly made by christians authorities, with a study that includes the collate of this text with the Kitab Al-Tafri, a treatise on Malikí jurisprudence widely known in Al-Andalus in the period of its elaboration by its author, Ibn al-Gallab, born in Iraq in the Xth century.

María Teresa BOUZADA GIL: "The Widows Privilege in Castilian Law"

The "Widows Privilege" refers to the possibility recognized to these persons, even in the Modern Age, to apply in first instance to a superior court. María Teresa Bouzada studies the origins of this privilege and some legislative matters related to it, as its inclusion in the Alfonso Xth Partidas, as well as aspects of the doctrinal debate that were raised by this figure in the XVI to the XVII centuries.

Pedro Andrés PORRAS ARBOLEDAS: "Ordinances for the Valle de Mena (Burgos, XVI-XVIII centuries)"

Edition of the Ordinances dictated for the Valle de Mena, in the limits of Burgos with Alava and the Biscaian Encartaciones. Besides their juridical contents (institutions, prohibited activities and judicial procedures), the interest of these texts lays in the description and defense of rural life, farming and crops, and cattle practises of this area.

Miguel Angel PEREZ DE LA CANAL: "Unpublished documents on the creation of the Underdelegates of Development and first appointments"

Created in 1833, the Underdelegates of Development have been studied for the author of the article in a work published in the Anuario de Historia del Derecho Español, tome LXVII. Here, he publishes the documents related to their creation: the report of the Government Counsil, ministry memorials and the Royal Decrees for the stablishment and following modifications.


PAPERS ON HISTORY OF LAW #5 (199)


CONTENTS

Pedro ORTEGO GIL: "The 1840 project of Provincial Assemblies, model for the law of 8 January 1845"

One of the most disputed matters of the politic confrontations occurred during the Regency of the Queen Maria Cristina was the subject of the Provincial Assemblies. The different conception of moderates and progressists on the model to impose, the different composition of these corporations and the reach of its competencies gave place to the drafting of very different legislative texts. The 1840 Government Project was an attempt to adapt French administrative conceptions to the Spanish reality. It was favored by the intentions of the moderates to derogate the progressist 1823 Law, to admit the foreign influence and to find an eclectic solution that could be admitted by the progressists. The fall of the Regent and the coming to power of Espartero put an end to this objective. In 1845, however, the 1840 moderate project, with only a few variations, became enforceable law.

Pedro Andrés PORRAS ARBOLEDAS: "The Fuero of Viceo as a special financial regulation of marriage (Cantabria, 13th - 19th centuries)"

An ensemble of customs on civil law was formed in the Cantabric coast, as the Fuero of Logroño provisions were inserted in the oriental part of Cantabria and the Encartaciones territories, at the end of the 12th century. Some of them have been into force to our days. Such is the case of marriage financial regulation, and community estate between husband and wife, of which exists non-interrupted documentary evidence in procedures and notarial deeds from the 16th to the 19th centuries. The old Merindad of Viceo, a territory that extends along the Cadagua and Ason rivers, will provide the institutional framework.

Carmen LOSA CONTRERAS: "Capitular justice at Nueva España in the 18th century. The Court of the Fiel Ejecutoría"

Through the exhaustive study of documents contained in the category "Real Audiencia de la Fiel Ejecutoría" of the Old Archive of the Mexico City Council, the Fiel Ejecutoría have been analyzed from an institutional point of view. This is a body that is in charge of the provisioning supervision in the American, and especially Mexican cabildos (town councils). The interest of this institution lies in the knowledge of its acting as Court in those matters in which it is competent, through a summary proceeding, simple and quick, always open to appeal.

Susana GARCÍA LEÓN: "The state trial against the member of the Parliament Miguel Ramos Arispe "

In May 1814, a high number of the members of the Ordinary and Extraordinary sessions of the Parliament were imprisoned under the indictment of high treason or lese majesty. State trials proceeded, among which the one followed against the Mexican Miguel Ramos Arispe. A considerable part of this trial has been preserved to our days, making possible to know the way in which the interrogations were developed. However, several writings appeared on the subject of these imprisonments, from other members of the Parliament as Joaquín Lorenzo Villanueva and Antonio Alcalá-Galiano. These writings ended in a controversy, as their points of view on the facts were very different.

María Jesús TORQUEMADA: "The Santo Oficio in confrontation with the Crown interests and local authorities. The case of Villanueva del Ariscal relatives"

The confrontations between institutions that depend of the Spanish Monarchy during the Ancient Regime are revealed in some documents if the 18th century, relating to the use of inquisitorial posts in order to avoid certain fiscal duties. Undergoing it all there are two problems: distributive justice and location of the enforceable rule.

José Luis BERMEJO CABRERO: "Two Ordenanzas (Parliament regulations) of Enrique the 2nd on sacas

In spite of the high number of parliamentary regulations that have been published, it is possible to find unpublished documents of this kind yet. In the present case, two regulations have been found: the first one, coming from the Cortes of Burgos in 1377; the second, from the Cortes of Toledo, a year later. The first Trastamara monarch legislates minutely on the products whose exportation was forbidden -they received the name cosas vedadas, or "forbidden things"-, such as equines and cattle destined to nourishment, money and noble metals, and other foods. The stipulated penalties consisted in the confiscation of the intervened items and a fine, except for the more important cases, for which it was prescribed the death penalty.

José María PUYOL MONTERO: "A recap of 25 years of historiography on History of Law in Spain (1973-1998)"

This article presents a broad view of the historiography in History of Spanish Law for the period between 1973 and 1998. Having ordered the works by chapters and research subjects, one verifies that the considerable volume of publications in our specialisation in these twenty-five years is due in the first place to the multiplication of specialists in History of Law. To this reason, one should also add the multiplication and diversification of publication channels for scientific articles, the appearance of new scientific periodicals, and finally, the collaboration of many public and private institutions that favour the publication of research papers. One also observes as well a great diversity in research subjects; medieval subjects have given way to modern and contemporary studies, and the study of Castillian law has continued to take precedence over the law of other historical territories. One also detects as well a renewed interest for institutions, specially political institutions, whether local or those of the fields have not been abandoned. This article gathers as well a long list, ordered by subjects, of the historiography in History of Law of this period for reference for scholars and researchers.


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