Cuadernos de Historia del Derecho (ISSN 1133-7613, ISSN-e 1988-2521) is an annual journal founded in 1993 by the History of Law Department at the Complutense University of Madrid. It includes topics on both the History of Law and the History of Institutions in Spanish, French, Italian and English. It aims to cover the whole European and Spanish-American cultural geographic field.
In order to support the global exchange of knowledge, the journal Cuadernos de Historia del Derecho is allowing unrestricted access to its content as from its publication in this electronic edition, and as such it is an open-access journal. The originals published in this journal are the property of the Complutense University of Madrid and any reproduction thereof in full or in part must cite the source. All content is distributed under a Creative Commons Attribution 4.0 use and distribution licence (CC BY 4.0). This circumstance must be expressly stated in these terms where necessary. You can view the summary and the complete legal text of the licence.
Responsibility of states for damages to foreigners in a tentative period. The Spanish chapter of the Cerruti case and other claims of Italian subjects against Colombia (1886-1904)
By means of the Matéus-Menabrea Protocol of 1886, Colombia and Italy agreed to submit to the Government of Spain the decision as to whether Ernesto Cerruti and other Italian subjects living in Colombia should be compensated for the damages they had suffered as a result of administrative responsibility. Historians have so far not paid much attention to the Spanish sources relevant to this agreement, and have focused only on examining the first phase of this case: the millionaire lawsuit concerning Cerruti. This paper aims to provide a panoramic view of the two phases of the litigation in Spain, highlighting the peculiar status granted to the mediator –or, rather, arbitrator– and contextualizing the complex trajectory of the case within a broader scenario of profound transformations, during which international law was still in an experimental stage.
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Legal pairing in the administration of justice: procedural practices and jurisdictional tensions in cases of tobacco smuggling in Antioquia, 1820-1850
This paper analyzes the administration of justice in cases of smuggling in Medellín (Antioquia, Colombia) between 1820-1850 and raises the meeting of two legal cultures, a phenomenon that we will call pairing or blend between the old and new regime. To do this, it focuses on judicial cases related to the cultivation and smuggling of tobacco, showing the complexity in the coexistence of the legal sources of the moment when judging. In addition, resistance to a modern political and legal project is evident, which affected the application of Republican regulations. The study reveals the complexity in the coexistence of the sources of law, as well as the relevance of smuggling in the economy of the time and its impact on the income of the State. The tension between local and statal judges stands out, as well as the lack of lawyer judges, which generated a jurisdictional duality that sought to increase the effectiveness of justice in the first years of the Republic.
On mortis causa transactions in Roman Law and Spanish Civil Law: proposals for a definition in each area and for the concept of terminus iuris
This paper presents an analysis of mortis causa legal transactions in Roman Law and Spanish Civil Law, from the perspective of the juridical dogmatism, aiming to provide a precise definition for each domain. The study begins by reviewing Jordano Barea’s critique of the predominant doctrinal conception of the will, examining the private nature of mortis causa institutions, assessing the legal effects they might produce immediately, and the role of a condicio iuris within them. Throughout the discussion, the implicit presence of the concept of terminus iuris in both legal systems becomes apparent. Finally, the paper culminates in proposed definitions.
Encouraging Agrarian Colonization through Private Initiative: Exemptions and Privileges in the New Sevillian Settlement of La Serrezuela (1778)
This article examines the foundation of La Serrezuela as an experience of private agrarian colonization inspired by the New Settlements of Sierra Morena. Through two key documents dated 1778, which until now had remained unknown, it analyses the exemptions and privileges granted to the settlers to encourage the settlement of the new colony. The initiative, promoted by the Marquess of La Serrezuela, combined private capital with state support; however, despite its ambitious beginnings, the project ultimately failed. Thus, this case illustrates the limits of Enlightenment reformism when applied to the Andalusian countryside through private initiatives.
Provisions of the Council of Orders (Order of Santiago) regarding the town, commander and commandery of Socuéllamos (1517-1556)
This contribution brings together a collection of almost 400 registers of documents relating to the period of Emperor Charles’ administration and the town of Socuéllamos in La Mancha, where both local issues and examples of the policies being developed by the monarchy during those years can be seen. Of particular note is the large number of provisions that refer specifically to disputes over boundaries and land use between this town and neighbouring villages, evidence of the human, livestock and economic growth that was taking place at that time.
Procedure and practice of the Royal Chancery of Valladolid. The distribution of lawsuits to notaries
The apportioner of lawsuits of the Royal Chancery of Valladolid was the official who, from an early date, guaranteed equality and balance in the activities of the court clerks of the Castilian High Court, as well as the proper conduct of litigation in its initial phase. This article examines the regulations that gave rise to the office and the apportionment procedure, as well as analyzes the office itself, its holders and the procedure itself; highlighting its influence on other Spanish and American high courts, as well as on the apportionment of judicial matters in the contemporary administration of justice.
A Suspicious Discipline: The chair of natural law and nations in the eyes of catholic legal culture
The discipline of natural law and law of nations has been the subject of academic and intellectual controversy throughout Western Europe since the seventeenth century. In this context, the present study asks about the effects of the European confessional division on legal education and literature dominated by the ius commune. As we try to prove, the Catholic intellectual culture and its Protestant counterpart were interconnected through a space for the circulation, communication and translation of legal knowledge created by the European legal science. It is concluded that the authors and works of rational natural law, although they collided at different dogmatic points with the Catholic legal culture, foster continental legal education with new methodological proposals and theories in the field of the rising public law.
Civil and natural tensión in patrimonial relations (Castile, 16th-17th centuries)
In Castile, as in the rest of Europe, the jurists of the sixteenth and seventeenth centuries used the qualifiers civil and natural for the classification of both obligations and possessions. The legal situations defined by personal rights and rights in rem gave rise to the interpretation of the coincidences and differences that those labels implied, and to the assessment of the way in which positive law channelled factors of a moral or theological nature into the tensions generated in practice by patrimonial legal relations.
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] So far, so close: the joint Court of the New Hebrides. The sentences handed down under the presidency of Manuel Bosch Barret (1936-1939)
The domination of the archipelagos and islands of the South Pacific was one more part of the intricate game of interests of the European monarchies throughout the Modern Age. At the end of this period, above all, France and Great Britain, which in the nineteenth century would be joined by Germany and the United States, would be the protagonists of a series of political and economic disputes where each sought its zone of influence and pre-eminence over the rest of the states. Meanwhile, the role of Spain, so extraordinary in the sixteenth and seventeenth centuries, declined in the eighteenth century and became practically irrelevant in the nineteenth. The archipelago of Australia del Espíritu Santo, now the Republic of Vanuatu, was discovered for the Spanish Monarchy, almost by chance, by Pedro Fernández de Quirós at the beginning of the seventeenth century. After almost two centuries of abandonment by Spain and disinterest on the part of the rest of the European states, since the end of the eighteenth century, for geostrategic and economic reasons, to which religious reasons were added, Great Britain and France show a growing concern to colonize this and other archipelagos and islands of the South Pacific, which will lead them to compete for control of this immense maritime area. Australia del Espíritu Santo, so designated by Fernández de Quirós, was called, from the end of the eighteenth century, Great Cyclades and, shortly afterwards and until 1980, New Hebrides. The consequence of the continuous discord between France and Great Britain was the promulgation, at the end of the nineteenth century and the beginning of the twentieth century, of a series of agreements and compromises, imposed on the natives, in which the organization of the archipelago was divided, always and only keeping in mind the selfish colonial interests of the Westerners. An essential element of this political, administrative, judicial and police organization that prevails in the New Hebrides is the Mixed Court/Joint Court which, for historical reasons, was presided over from its constitution until 1939 by a President appointed by the King of Spain. The judgments of this Mixed Court issued under the presidency of Manuel Bosch Barrett (1936-1939) will be the object of analysis in this work.
An 1825 Consultation of the Council of Castile on the Abolition of Slavery in Spain
This article is based on an initiative of the King of Spain Ferdinand VII in 1825 for the Council of Castile to study the possibility of abolishing slavery in all or part of its dominions. It reviews some antecedents of the reign of Ferdinand VII in relation to the abolition of slavery and the circumstances of the time, in order to better understand the historical framework of the royal proposal and to understand some of the reasons for such an initiative. The article then analyzes the opinion prepared by the prosecutors of the Council of Castile for the full Council, followed by the final consultation that the full Council submitted to the King of Spain. The monarch, in agreement with his Council, decided not to alter for the moment the legal situation of slavery, both in the Spanish territories of the Peninsula and overseas, because of the consequences that this could have for the stability and control of those territories which, like Cuba and Puerto Rico, had a very high population of slaves. As a consequence of this royal decision, slavery continued in Spain for many more years and Spain was one of the last countries to abolish slavery. The article is based mainly on the consultation of documentation preserved in the National Historical Archive of Madrid, mostly unpublished.
Legal crime. Legal notes on the novel by Alejandro Sawa (1886)
In 1886, Alejandro Sawa published a novel, within the prevailing naturalistic trend of the time, in which he raises a very important issue: abortion. In the development of the novel, the question of abortion is raised from two points of view: therapeutic abortion and abortion as a means to carry out a homicide, that of his own wife. The author, who had studied law, approaches the first aspect from the contrast between the problem of conscience in the light of the doctrine of the Catholic Church and science, and the second, that of uxoricide using abortion itself as a means, for which no adequate legal response is found.
The iudicia contraria in the context of Roman procedural actions
A study on the meaning and extent of the expression iudicia contraria / actiones contrariae in Roman jurisprudential texts.
“The crime «tercería locativa». Of love, clandestine sex and prostitution, 1944-1973”
The crime ‘tercería locativa’ was created by the Penal Code of 1963 as a result of the European abolitionist movement in its fight against trafficking in women. The prosecution of those who provided rooms or premises for the practice of ‘illicit’ sexual acts was intended as an instrument against prostitution, but it also became a mechanism to control sexual practices during Franco's regime.
Placement Records of Children Evacuated from Madrid during the Civil War and Early Post-War Years (1936-1941)
This work explores the placement records of children evacuated from Madrid during the Spanish Civil War and the early post-war period (1936-1941). Through the analysis of documents found in the Archivo Regional de la Comunidad de Madrid, it examines how the evacuation and relocation of children were managed, and how these documents reflect both the social policies of the time and the impact of the conflict on the most vulnerable. The study differentiates between the documentary groups corresponding to the years of the Republic and those of the early post-war period, offering an insight into the different strategies for child protection and redistribution.
The privilege of the Grandees of Spain granted to the Generalitat of Catalonia (March 31, 1706): Study and Edition
A study through the privileges granted by the Grandees of Spain by Archduke Charles of Austria to the Generalitat of Catalonia and to the Military Branch of the Principality in 1706 has allowed us to delve into the analysis of the various manifestations that the granting of this grace to secular and ecclesiastical juridical persons occurred within the Spanish Monarchy from the sixteenth century onwards.
João Baptista de Ataíde Mascarenhas Cordovil’s Notebooks about the Portuguese Law
Eleven years after the introduction of the eighteenth-century reform of the legal education system in Portugal, among all the Canon Law students who are attending the fifth year, stays João Baptista de Ataíde Mascarenhas Cordovil, a friar of the Saint Francis Third Order and future inquisitor. With an irreprehensible scholar performance, his importance lies in a set of two manuscripts attributed to him whose custody belongs nowadays, one to the National Archive of Torre do Tombo and the other in the Public Library of Évora. According to an attentive writing, their content illustrates the object and methodology followed in the new discipline of Portuguese Law, that should not be discarded, since the compendiums required by the University Statutes to the new disciplines were still unaccomplished. Once it is totally impossible to develop all the subjects presented in these texts, after a preliminary and comparative explanation, this study ends with an analysis of the rules of the interpretation of the law, a topic that was exhaustively treated by the legislator of the Enlightenment in full accordance with the current Legal Philosophy approach.
Judgement: a name, a concept, some examples
A brief presentation is made on the meaning of the word-concept sentence, elaborated by the canonical world from the construction of the process. It is observed how this term was formulated and reformulated by jurists outside official normative provisions, and this jurisprudential work continues until practically the time of the Codification.
Post-War chocolate interventionist regulations
Chocolate, its manufacture, composition and trade were subject to strong state control during the years following the Spanish Civil War. This study highlights the importance of this product, a stimulant and powerful restorative, whose production, marketing and consumption were permanently in the spotlight of the authorities throughout the first decade of Franco's regime. That control was carried out by means of meticulous regulations that extended to the importation of raw materials, which were non-existent on the Spanish mainland, the composition of the product and its marketing. Finally, at the beginning of the 1950s, the traffic of such highly demanded merchandise within Spanish territory was liberalised.
“Social justice” in times of Francoism: appeals for review and cassation of the fourth Chamber of the Supreme Court.
This work approaches the concept of social justice during the Franco Regime. For this porpoise, the resources presented before the Social Chamber of the Supreme Court are used as a source of analysis, with the intention of verifying whether the legal operators helped to provide content to the aforementioned concept.
Between the foral system and common law. The proposal of a transition government for the New Settlements of Sierra Morena made by the sub-delegate Miguel Ondeano in 1779
The New Settlements of Sierra Morena and Andalusia arose from 1767 as an agrarian colonization promoted by the Spanish Crown. To facilitate their success, they were granted a protectionist system of government that, in theory, was only going to be in force for a short period of time; however, due to various circumstances, it was maintained until 1835, which did not prevent some individuals from making proposals to facilitate the transition to the common system of government. In this sense, Miguel Ondeano, subdelegate of the New Settlements of Sierra Morena, raised an interesting proposal for these colonies to the king in April 1779. Our objective in this work will consist of analysing the measures that he proposes and that, if they have been considered, they would have reduced the excessive government paternalism while they would have granted greater prominence to the neighbours in the work of government.
Ecclesiastical law in the republican zone during the civil war (18.07.1936-01.04.1939)
All the official “Gacetas” and Bulletins published during the duration of the civil war by the Republic are analyzed. Trying to point out any reference to the norms of Church and State law, to religion, to the Catholic Church, etc. It seems very likely that even despite the formal continuity of the publication, with very few interruptions, not all relevant provisions on the matter have been included in the official publication. Considering what it was publish it can be said that not significant changes in the regulations on these matters occurred.
The succession of the Granadian businessman Fernando de Baena (1555) (with appendix on the testamentary dispositions of Fernando López Palomino, inherited in Darabenaz)
This paper brings together the testamentary or similar provisions of two important figures in the city of Granada from the time of Emperor Charles V. On one side, the businessman Fernando de Baena, who ended up accumulating a considerable capital, preserved in the assets linked to the majorat of his only son; on the other, we find two characters of identical name, Fernando López Palomino, one of them, of profession changer, gives his last will in 1522, and another, a farmer in the lands of La Zubia and Juncaril, formalized it in 1555; all of them had in common, according to the author, their membership in the Jewish converse community of Granada, came from Andalusia.
Notes on the sources and composition of the Curia Philipica
This work aims to make known how the Curia Philipica was written, on whose cover Juan de Hevia Bolaño appears as the author. But in reality practically nothing original came from his pen, since he limited himself to transcribing or translating the texts of other jurists who preceded him, including the critical apparatus of their works. This research allows us to understand how some works of Castilian legal literature of the Modern Age were composed.
Church burglaries through Supreme Court rulings: sacrilege?
This article analyzes how the Supreme Court qualified the crime of theft committed in churches, if it was understood as "sacrilegious" in a context of freedom of worship. It also delves into other elements that the High Court considered through the cassation appeals it ruled on between 1871 and 1907.
For five decades, Professor José Sánchez-Arcilla Bernal turned his research and teaching activity into a profession with exclusive dedication to the History of Law and Institutions, a career that is reviewed in this work.
The ordinances of Monzón de Campos of 1606
The town of Monzón de Campos, under the dominion of the Rojas since the mid-14th century, was endowed with ordinances in the year 1606 that would have great importance for the regulation of the most important economic activities, as well as for the social pacification of the neighborhood, and the relationships with their lords. This article analyzes its preparation and approval process, its content and validity, providing a full transcription of them.
Two peculiar execution processes: one against Mari Sánchez de Ubirichaga (Bilbao, 1497-1513) and another against the Genoese merchant Tomás Espínola (Toledo-Madrid, 1572-1573)
Two executive processes of a peculiar nature taken from the funds of the Archive of the Royal Chancery of Valladolid are brought together in this documentary contribution. The first of them from the Sala de Vizcaya, began at the end of the 15th century, in which a forge was built in the antechurch of Yurre, with numerous creditors attending and with unexpected results. Equally surprising is the end of the second trial, fully documented, which was followed in Toledo against a Genoese merchant, who arrived in Castile as an accused in Naples and Genoa.
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The Jurisprudence of the Supreme Court and its impact on the formation of the crime of insult. Part II (1928-1978)
In our Civil Code only custom and general principles of law are contemplated as sources of the Spanish legal system (art. 1.1.). However, the same Code, in its point 6, recognizes to jurisprudence the faculty to complement the legal system with the doctrine that is established, in a reiterated way, by the Supreme Court to interpret and apply the law, the custom and the general principles of law. This study addresses the role of the jurisprudence of our Highest Court in the conformation and complementation of the crime of insults during the period 1928-1978.
The fate of the soldier: redemption and substitution in the notarial protocols
The service of arms in the 19th century could be legally circumvented through the redemption and the substitution. It is questioned in this article if these mechanisms were generators of inequality and what impact did they have on notarial protocols.