CUADERNOS DE HISTORIA DEL DERECHO Nº 6 (1999)

[PAPERS ON HISTORY OF LAW]


CONTENTS

Raquel MEDINA PLANA: «Ways of understanding or understanding the way: the first Chairs Memoirs on History of Law».

Despite being an outstanding source for the analysis of a discipline formalization process, the «Memoirs of Competitive Examination», as they have been referred to traditionally, are not usually available to the public. The present paper focus on the first Memoirs of History of Law under the perspective of the crystallization of a discipline’s corpus that takes place in them, and takes into account the conditionings that weigh them down, which can be the reason why they only see the light in a few occasions even though, in our country, there are not much works on theoretical and methodological aspects in the historical-juridical discipline. In the course of time, there are still many matters that deserve to be reviewed: among them, the most important is the discipline’s scientific conception in it self. The neokantism of those days minted the term «cultural science» which is the one most of these authors use to understand the History of Law. The study of these particular texts implies a reflection on the role of the academical scientist when facing its teaching and researching tasks.

Remedios MORÁN MARTÍN: «Don Manuel Torres López: Salamanca (1926) - Madrid (1949). The coherence of a trajectory».

The clearness of a researcher’s path, in absolute coherency with his personal and professional trajectory, is well stated through the examination of Manuel Torres López’s written exercises, made on the occasion of his competition to the Chair of History of Law at the Salamanca University, in 1926, and afterwards at the Madrid’s Central University, in 1931. The aim of the present paper, which includes the publication of these exercises, completed with an analysis of the dissertation on theoretical and methodological aspects of the discipline, is to show the continuity of this professor’s line of research. The trajectory from his first years at the University to the moment when he had access to the second Chair at the Madrid’s Central University, where he stayed until his retirement , is demonstrated by a short comparative analysis of these exercises with later works.

José Manuel PÉREZ-PRENDES MUÑOZ-ARRACO, «The Myth of Phryne».

A study of the accounts and bibliography of the trial of Phryne, proposing its comprehension as a myth that differentiates the sacral and rational paradigms as alternative law fundaments. The author analyses those paradigms from the point of view of some terms and concepts of Xabier Zubiri. Compares the central criteria in which the Law of the Old Testament, the ideas of Cicero, the Canon Law and the Lutheran area are inspired. Insists on the importance of the Edict of Nantes. Points both the rise of Kant’s juridical rationalist vision and its crisis, as stated by Hannah Arendt in the use that was made of it in the Eichmann’s trial. Over every part of the monograph, the concept «angustiae iuris» or insufficiency of Law when fixed on any rule is built. In a tacit way it is indicated that this has been the cause of deep changes in the concept of Justice along the history of humanity. The conclusion points out the necessity to assume the effects of that category in any juridical project, present or future.

José ORLANDIS ROVIRA: «Considerations about the Conversion to Christianity in the Late Antiquity».

A study about the colective conversions of the Barbaric nations during the time between the 4th and the 8th centuries and the different aspects involved:

1. The diverse religious situation of each one of these nations: with just one conversion (to Arrianism), from paganism to the Catholic Orthodoxy or suffering the «double conversion».

2. The «pre-conversion» phenomenon: individuals who are converted to the Catholic faith before the whole of their nation is.

3. The role of the missionary men in the conversion of the pagan nations.

4. Women as precursors adopting the Catholic religion.

5. The distinction between conversion (following the exemplum regis) and the Christianization, which takes longer. (The conversion and baptism of the Barbaric man do not mean a sudden change of his mentality and way of life).

6. The preaching of the missionary men. The difference between the one for those barbaric nations invaders of the West Roman Imperium provinces and the one addressed to those nations settled beyond the Imperium limes.

Magdalena RODRÍGUEZ GIL: «Considerations on an old controversy: the private churches».

The end of the nineteen century and beginnings of the twentieth historiography draw a considerable attention to a phenomenon identified in Stutz’s works as Eigenkirchen. Its Spanish translation, «iglesias propias» («private churches») was introduced by Torres López in Spain; since then, this terminology was of common use to designate those churches, their particularity being that they were privately owned. Three different periods can be observed along the history of these churches: the beginnings, under the visigothic rule, although their existence cannot be proven with the same abundance than in the Reconquest period; an intermediate stage, when the phenomenon spreads and further develops, trying to conciliate the private interests with those of the Catholic Church; and, finally, the condemnatory stage, initiated with the Gregorian reformation and continued by the pope Alexander the Third, who designed the right of patronage over this kind of churches. This paper structures the basic discourse on this institution: origins, nature and concept, from the point of view of three authors: Stutz, Torres López and Bidagor, with the subsequent controversial debate about the subject.

Miguel PINO ABAD: «The andadores de concejo at the Castilian and Leon municipal Fueros ».

The aim of this paper is to profile the figure of the «andadores de concejo». The andadores were a kind of municipal officials; this figure was present at most of the fueros ¾ codes of privileged municipal laws¾ of the regions of Castile and León dated from the High Middle Ages. None of the many works on the municipal officials of the Middle Ages has studied this figure; this historiographical silence is probably due to the secondary position of this official in the municipal organization and his lack of autonomy to develop his functions: the andador was completely dependant on the judges that were charged of his election. His functions, all of a merely executive kind, were very different: to act as a messenger, to preserve the order at the proceedings, to enforce the judicial pledges, to torture the convicts, to custody the prisoners, to execute the physical punishments on the convicts, the nature of all these functions required from these officials good physical and psychological skills as well as a strong control by their senior officials. Nevertheless, and despite all the peculiarities of this post, this officials were subject to all the general rules that were in force for all the municipal charges.

David PELÁEZ PORTALES: «The qualification of witnesses in Medieval Muslim Law».

During the last few years, several historical and juridical studies have seen the light with regard to Islamic Law and particularly the procedure. Nevertheless, there are still some gaps about this subject. This paper deals with the procedure of witnesses qualification in the judicial process in al-Andalus. From the authors researches, we can find two different kinds of witnesses: on the one hand, simple witnesses, who were ordinary or non-professional, and, on the other hand, fixed witnesses (adules), who were professionals and were ascribed to the court. The former required normally an honorability verification from the Cadí, while the latter, the adules, did not need to bring up to date their statement of suitability in order to be witnesses in a new suit, their testimony being used as pre-constitutive part of the evidence.

Susana GARCÍA LEÓN: «A Repertory of Laws of Cortes from the 14th Century».

The present paper studies a judical repertory from the 14th century, belonging to the old Royal Library that includes plenty of references to laws given in the Cortes’ sessions which took part between 1322 and 1396. The transcripcions and analysis of its contents made clear its purposes: to provide the framework for all the laws in force at that historical moments. Due to its source this document could have been used by the Consejo Real to make easy the search for the Cortes laws and pleas. Therefore, we can conclude with the hypothesis of this repertory being a complementary instrument to the Ordenamiento de Alcalá.

Soha ABBOUD-HAGGAR: «Jurisdictional conflict in a lawsuit between mudejars. Ágreda, 1501».

Preserved at the Historical Archives of the Spanish province of Soria there is a manuscript which belongs to the judicial funds of the Corregimiento of Ágreda, dated in the year of 1501; its transcription can be found at the end of this paper. It is part of the judicial process followed by judge Jerónimo Ruiz, which, upon the requirement of the defendant Mahoma de la Huerta, was to be presented before the Valladolid’s Chancillería in order to appeal the imposed judgement. The penalty imposed to Mahoma de la Huerta was to pay a strong fine as he had abetted an offense of jurisdictional abuse, denouncing his neighbor Audalla Ferón before the Corregidor’s lieutenant of the city, and not before the judge for the moors and the fortress, or his representative, Jerónimo Ruiz, who was in charge of settling the lawsuits between moors in the aljama of Ágreda. The study of this manuscript gives the opportunity to study two sides in the life of an aljama at the end of the Middle Ages: the judicial aspect of the process, as an example of the short pre-trial hearings applied by a Castilian judge in a morería, and the social-historical aspect about the aljama of Ágreda and its internal functioning.

María José MARÍA e IZQUIERDO: «The Ordenamiento de Montalvo and the Nueva Recopilación».

The aim of this paper is to value the influence of the Ordenamiento de Montalvo in the Nueva Recopilación. The Ordenamiento de Montalvo, printed for the first time in 1484, was the first Castilian compilation, and therefore an incomparable antecedent of the 1567’s Recopilación. As we all know, the work of doctor Montalvo is being subject to a great historiografical controversy which lays on the lack of proof about its official recognition and on the criticism by the procurators of the 1523’s Cortes which argued that he had compiled the Castilian rule in a corrupted way. Taking into account these premises and the valuation of the Ordenanzas Reales made in my doctoral thesis entitled The Ordenamiento de Montalvo sources, my goal was to establish, through a thorough comparison, the legal relations, concordances and differences between both Castilian compilations. Besides the fact that the Recopilación de Montalvo had and official recognition in its time, it had also a crucial transcendence on the 1567’s Recopilación. Twenty per cent of the laws of this Recopilación come from the Ordenanzas Reales or Ordenamiento de Montalvo and most of them kept the Montalvo’s wording. Which means that part of the work of the Castilian jurist reached, in the course of time and with no doubt, that controversial official recognition, and became a source for the Nueva Recopilación.

Joaquín AZCÁRRAGA SERVERT: «Philip the Second of Spain: the Golden Fleece [la Orden del Toisón de Oro] and the events of Flanders».

Between the years of 1564 and 1566, Philip the Second of Spain tried to impose the Tridentine Edicts in the Netherlands, thus provoking the opposition of the Flemish nobility and of a part of the Knights of the Order of the Golden Fleece. The arrival of the Duke of Alba as a chief of a military expedition and the creation of the Turmoils Court to judge the Knights blamed for participating on the revolts, brought up again the question of the exemption of these Knights from the ordinary jurisdiction, and therefore the absolute impunity of the committed offences.


CUADERNOS DE HISTORIA DEL DERECHO Nº 7 (2000)

[PAPERS ON HISTORY OF LAW]


CONTENTS

Pedro Andrés PORRAS ARBOLEDAS: «The shipping practices at the Oriental Cantabrian Sea (15th-19th centuries). Part one».

From the documentation kept at several archives (Historical Archives of the Cantabria Province, Historical Foral Archives of Biscay and the Valladolid’s Royal Chancellery Archives), the author reviews the different types of documents related to the sea life, with special attention to the ones concerning the shipping practices, trying to offer a detailed typology of them. For this purpose, he split them in five parts: shipping documents (contracts, proxies and general averages), documents of war and privateering (those due to the organization of royal armies and corsair activities), administrative control documents, documents of criminal kind and other documents. The documents related to affreightments, bill of lading, insurance policies and bottomry loans which are the more numerous at the given documentation will be studied in part two. The paper is completed by a bibliographical appendix and a documental appendix, which includes 44 texts.

Pilar ESTEVES SANTAMARÍA: «Transmissions of notary’s positions in Madrid (16th-19th centuries)».

The paper «Transmission of notary’s positions in Madrid (16th-19th centuries)» aims at, on the one hand, to reveal the contradiction that existed between the numerous normative dispositions against the transmission and multiplication of the notary’s positions and the practice of their patrimonialisation, accepted and even fostered by the kings themselves in those occasions in those occasions where they could have a financial benefit. On the other hand, based on a collection of samples of public deeds executed before several Madrid’s notaries between the 16th and the 19th centuries, the author has studied each kind of notary’s position transmissions (purchase, lease, mortis causa succession, resignation), finding a strong similarity at the documents executed during such a long period.

Pedro ORTEGO GIL: «Abigeatos and Other Rustlings: a Jurisprudential Perspective (16th to 18th Centuries)».

The thefts of cattle and the peculiar features that could be found in some of them gave place to the regulation of the abigeato, which, based on the Digesto texts, was included at the Partidas, although adapted to the singular interpretation of the Justinian provisions that made Alfonso 10th. The 16th to 18th centuries theoretical jurisprudence used both of this provisions, and was involved, above all, about the requirements that had to be met in the theft of cattle in order to impose the death penalty to those who were considered as real abigeos or cattle lifters. The practical jurisprudence which is studied using the preserved documents of the ancient Kingdom of Galicia judicial bodies, and particularly of the Real Audiencia,, shows that most of the cases were considered theft of cattle and not real abigeatos. At the judges discretion, the punishment for every offence could be graduated according to the different circumstances, electing the physical punishments at the service of the Crown which were considered lesser than the death penalty.

J.M. ALEJANDRE and M.J. TORQUEMADA: «The Expulsion of the Jesuits from the Kingdom of Naples».

The expulsion of the Jesuits from the European Catholic States between 1759 and 1768, as well as the subsequent abolition of the Compañía, is due to the confrontation between those States and the Roman Curia, which is also the consequence of the enlightened, reformist and laicist tendencies that brought an extreme regalism. In this regalist system, the kings’ power is considered absolute and outside the jurisdiction and the authorities assumed by the popes in accordance with medieval principles which were behind the times. The politics enforced by Carlos the 3rd of Spain against the Jesuits had a special repercussion in the Italian territories which were already independent from Spain but were still subject to the decisions made at the Madrid’s Court: for instance, we can find in the Kingdom of Naples the extrapolation of the reasons that led the Spanish king to decide the expulsion and the parallelism with the procedure followed in king Fernando’s Court, and we can notice the influence of his father and the Spanish ministers as well as the influence of the Neapolitan Secretary of State, the strongly anticurialist Marquis of Tanucci. At this paper, the authors, although focused in the events that took place in Dos Sicilias, demonstrate the interference of doctrinal arguments and philosophical concepts on the king’s sovereignty, problems of social content and economical conflicts suffered by all the States involved in this matter, as well as the tensions and interests of the European powers which find in the Jesuit problem a pretext to be expressed.

José SÁNCHEZ-ARCILLA BERNAL: «The Lower Justice Administration in Mexico City at the End of the Colonial Era. I. Drunkenness punishment at the Libros de Reos (1794-1798)».

Justice administration is one of the subjects in which the specialized research in the Spanish Colonial Law have work preferentially over the last few years. Nevertheless, favored attention has been addressed only to the aspect of the organization ¾ and specially the Audiencia organization, leaving aside other levels of justice administration, which quantitatively speaking, have the higher importance. On the same time, some researchers have resorted to the sources with prejudices learnt from previous works that had approached partially the study of justice and criminal law in the Ancien Régime. The present paper deals with the study of the justice administration at its most primary level. To this purpose, the author has resorted to certain sources which, at least in the Spanish peninsula, find no comparison whatsoever. These sources are the Libros de reos, that belong to the Corregidor and the ordinary majors of Mexico city. They include 7.033 records about the same number of defendants, who had been captured by the vigilant Rondas that covered the entire city. Although only a few Libros de reos have been preserved (those of the years 1794, 1795, 1796 and 1798), they include a very rich material, and show the inferior justice enforced through oral hearings. In this first part of the work, not only is analyzed the justice organization in Mexico city at the end of the colonial period, but also the offence that was reflected the most in the Libros de reos records: drunkenness. This problem reached worrying dimensions for the Mexican authorities, who had to repress it with arbitrary penalties first, and later on with legal penalties gathered in the Virrey Branciforte’s Bando of July the 7th 1796. In this paper, the author tries to analyze the different degrees of drunkenness that were typified somehow and sanctioned in different ways. At the same time, drunkenness is studied together with other punishable behaviors, and their incidence in the punishability of the same.

Carmen LOSA CONTRERAS: «The Consultative Administration in the beginning of the liberal State. The functioning of the Consejo Real de España e Indias. Sección de lo Interior (1834-1836)».

Within the framework of the great reforms in the Administration which took place from the death of Fernando the 7th of Spain, the establishing of a consultative body is of great importance: the Consejo Real de España e Indias which was thoroughly analyzed by Professor Arvizu. The work hereby presented intends to go further by studying the internal functioning of one section of the Consejo, the so called de lo Interior. The documentary basis in which the work was done includes two bundle of papers found in the General Archive of Indias (Indiferente General 583 and Ultramar 803), and the 171 dossiers of this section that are located in Simancas. These documents have been used to follow step by step the functioning of this section, both the entire assembly and the commissions, and its relation with the rest of the sections, and to obtain a clear view of the matters which deal with the «fostering of the country’s wealthiness», commerce, public works, protection of agricultural wealth, education and services to the community, and which underline the reformist and modernist spirit that inspired the work of politicians as Javier de Burgos, Cea Bermúdez and Martínez de la Rosa.


CUADERNOS DE HISTORIA DEL DERECHO Nº 8 (2001)

[PAPERS ON HISTORY OF LAW]


CONTENTS

Gérad D. Guyon: «Eschatology and politics (1st to 3rd centuries)»

In the first centuries of the Christian era, those who were faithful to the new religion analysed very seriously the relation between eschatology and politics, that is to say, the way in which to make compatible what was thought as a short stay on earth to reach the eternal life and the ups and downs of the daily public life; in fact, there were two ways of facing the problem: those who preferred to temporise with the existing roman power and those who denied its validity. In order to overcome this unsolvable contradiction, a new concept of Christian citizenship was created.

José Sánchez-Arcilla Bernal: «Thievery and larceny in the city of Mexico at the end of the 18th century according to the prisoners records»

Mainly, two matters are studied in this work. First of all, the use of the concepts of thievery and larceny in the different levels of law knowledge (cultivated, legal, forensic and vulgar) during the 18th century. Then, in second place, the author analyses the commission of this kind of crimes through the Prisoners Records of the City of Mexico, where evidences of a first instance justice administration can be found. This justice administration was verified by means of an oral procedure very simple and brief with which the crimes of scarce criminal transcendence were substantiated. The most important final conclusion is the scarce significance of thievery and larceny in the crimes committed in the city of Mexico at the end of the 18th century, compared to other felonies.

Gisela Morazzani Pérez-Enciso: «The State monopolies in the Provinces of Venezuela and the new Exchequer administration»

In this work, the authors analyse the regime of the monopolised incomes as a result of the establishment of the Captaincy General of Venezuela. The principal aim of the State monopolies in that province was not only to foster the demand of products from buyers, but also to prevent smuggling with other neighbouring foreign colonies. To the traditional State monopolies -gunpowder, salt, stamped paper, cards, etc- were added others that improved their operating regime in Venezuela. Of all the royal monopolised incomes, the one that bring more benefits to the Crown during the second half of the 18th century was the State tobacco monopoly.

Pedro Andrés Porras Arboledas: «The shipping practices at the Oriental Cantabrian Sea (15th-19th centuries). Second part»

In the first part of this work the author studied most of the documents used in the commercial field; in this second part, he has focused on the analysis of charters, bills of lading, underwritings and risk loans or bottomries, which are best represented in the sources dealt with (notary's protocols and judicial proceedings); the work is completed with the incorporation of an appendix in which 46 allusive documents are included

María Jesús Torquemada and Juan Antonio Alejandre: «How to dress saints»

During the Old Regime, the political power and the religious power were closely intermingled. Any demonstration of plastic or artistic nature was strongly supervised in order to get a double effect: on the one hand, the intention was to make that any pictorial or sculptural work had the aim of exerting on the subjects a didactic function, obviously in agreement with the Church upright doctrine. On the other hand, repression was exerted on the execution or exhibition of pictures which were considered an attempt on the catholic orthodoxy.

In order to do this the main instrument used was the Inquisition, and this institution exercised a series of provisions which regulated in detail the external appearance of those artistic expressions.

Mariana Moranchel Pocaterra: «The Regulations of the Royal and Supreme Consejo de Indias of 1636»

This work is aimed at publishing, in a modern way, the Regulations of the Royal and Supreme Consejo de Indias of 1636, of which the last known edition is from 1747, including a collation of the legal sources used by this institution. But, in order to give continuity to the collation and give the readers access to the regulatory instruments for a formal analysis of the evolution of the Consejo de Indias, such Regulations (Ordenanzas) have been also compared with those provisions which were included in the Recopilación de Indias of 1680. The origin and enforcement of those Regulations of 1636 is also considered, even after the institutional reforms of the 10 century.


vuelta a la página principal