03 July 2022

JOURNAL: Tijdschrift voor Rechtsgeschiedenis/Revue d'histoire du droit/The Legal History Review 90 (2022), afl. 1-2


(source: TRG)

  • Front matter
  • Criminal prosecutions of the deliberate killing of a new-born child in the Belgian province of West Flanders, 1796-1867
    • J. Monballyu
    • In Belgium, from 1796 until 1867, infanticide was a crime which was legally defined as the deliberate homicide of a new-born child and punished with the death penalty. In the province of West Flanders, for a long time the second most populous province in Belgium, this crime was strongly women-related. As in the other Belgian provinces and abroad, this crime was mainly committed by unmarried domestic servants who lived with their employer and with whom there was no time nor a place for a mother with a child. Infanticide was a crime that was prosecuted before the Court of Assizes of West Flanders and its predecessors. Such prosecutions happened rather exceptionally (109 people in all were prosecuted in West Flanders over a period of 70 years, i.e. an average of 1.5 per year), albeit in a steadily increasing line and with a peak during the years 1850-1867. The Court of Assizes punished this crime only very exceptionally with the statutory death penalty (only in 34 cases, i.e. 31% of the 109 accused). The other 75 accused were either acquitted (58 cases, i.e. 53% of the accused) or punished for another offence (17 cases, i.e. 15.5% of the accused). The acquittals and the punishments for another offence were not the result of the jurors’ or professional judges’ inclination to accept the puerperal insanity of the accused women, but a consequence of the fact that it was exceedingly difficult to prove that a child had been born viable, had lived independently of the mother for a while, and had been killed with the clear intention of killing it, when the child’s mother had given birth without assistance and claimed that the child had been still-born or died from a natural cause.
  • Creditor fructus percepit, Sul pegno con patto anticretico
    • R. Perani
    • Creditor fructus percepit, On pledge with a pactum antichreticum. – May the pledgee take the benefits of the res? Pledge did not allow it, there would have been theft (furtum usus). In fact, the thing given as pledge was excluded from any economic use. However, Roman law attests an agreement called ἀντίχρησις, which allowed the creditor to have the fruits of the res, under some conditions. Among the jurists only Marcianus uses this Greek term (in D.13,7,33 and D.20,1,11,1).  In this paper, I wish to demonstrate that the antichresis has become part of Roman legal thought. The legal sources attest a late appearance of the antichresis (very late 2nd and early 3rd century AD), but some Severian constitutions suggest that it may already have been known in practice. The Greek word indicated its foreign origin, but Roman jurists called it simply pignus.
  • Problemas probatorios de la exceptio doli
    • Patricia Lazo
    • The objective of this paper are the proof issues of the exceptio doli in the formular process. The author examines different texts from Roman lawyers regarding not only the proof of the exceptiones, but of the dolus as well, turning back to the problem of onus probandi in the classical process. One of the premises of this work is that the Exceptio doli has a bigger complexity than other exceptiones. These issues found a safer treatment when created the exceptio non numeratae pecuniae. The hypothesis is that this Exceptio should be seen as an alternative to the Exceptio doli every time the defendant has no chance to prove the facts that constitute the plaintiff’s Dolus (a positive fact). And this situation would be related to the fact that the reversal of burden of proof in case of negative facts was sufficiently known in the classic process and therefore the rescript of C. 4,30,3 was unnecessary for that goal.
  • Epistula Honorii: note esegetiche e riflessioni storico-giuridiche
    • Lorenzo Lanti
    • More than 430 fragments contained in the Theodosian Code can be traced back to laws by Honorius. The reason for this immense amount of costitutiones is to be found in the variety of issues he had to face during his rather long empire (395–423). Beyond those passed down in official Codes, a number of other laws issued under Honorius are attested by literary or historical sources. The purpose of this paper is to present, analyze and comment on the Epistula Honorii, a quite neglected rescript copied down in a Spanish volume of miscellaneous manuscripts from the end of the 10th century. The document, addressed to troops stationed in the city of Pamplona, grants certain benefits to these soldiers, namely an increase of their stipendium and the hospitium. After focusing on its dating and the problematic interpretation of its text, it will be compared to other laws by Honorius on similar topics.
  • The capture of the Ponte: the development of vicarious liability of shipowners and its limitation in Roman-Dutch law
    • Tim Lubbers
    • In 1599, Dutch privateer Melchior van den Kerckhoven unlawfully captured the Venetian merchantman Ponte, which resulted in extensive legal proceedings before the Supreme Court of Holland, Zeeland and West-Friesland. The Ponte case soon became the centrepiece for discussions about vicarious liability of shipowners for unlawful acts of their shipmasters, and – more importantly – about limitation of this liability to (the value of) their ship and cargo. Within these discussions, a secondary role was reserved for the case arising from the capture of the French ship Levrette by a Dutch merchantman in 1610. Based on extensive archival research, the present article offers a detailed reconstruction of the facts and proceedings of the Ponte and the Levrette case, and sets out how these cases were employed by Roman-Dutch lawyers to give shape to limited liability of shipowners for unlawful acts of their shipmaster.
  • Jurisdiction and its attribution in the works of Diodorus Tuldenus (1594-1645)
    • Geert Sluijs
    •  Diodorus Tuldenus (1594-1645) as a professor of the Digest at the University of Leuven is one of the most representative figures for legal academia in the Southern Low Countries in this period. After a brief biography, this article deals with a classic subject in the field of public law as discussed by Tuldenus in his works: jurisdiction and its attribution. In chapter one, the genealogy of the terms iurisdictio and imperium is traced until Tuldenus’ treatment of the subject, situating his position vis-à-vis the state of the art. In the second chapter the same is done for the conditions under which this jurisdiction can be attributed. In the conclusion, a tentative link is drawn between Tuldenus’ positions and their broader political ramifications.
  • Network analysis in legal history: an example from the Court of Friesland
    • Hylkje de Jong & Gijs van Dijck
    • This article focuses on the references (allegations) made by the lawyers in a selected number of cases to Roman and customary law as well as to court decisions when arguing their case. The analysis focuses on three similar civil litigation records from the Court of Friesland from 1716, 1718 and 1720. Network analysis was used to examine whether certain sources were more dominant (i.e. more central) in the network than others and to explore the relationship between the references. The lawyers in the three cases from the Court of Friesland appear to have used some references in common when arguing whether security rights (i.e. mortgages) included a right of pursuit and whether the auctioneer could recover the object if the buyer failed to pay.
  • Le vir bonus en droit romain, written by Elena Giannozzi
  •  Jurists and jurisprudence in medieval Italy, Texts and contexts, written by O. Cavallar and J. Kirshner
  • Ἐντολή (mandatum) in den Basiliken, written by Hylkje de Jong
  • Quatrième Livre des procurateurs de la nation germanique de l’ancienne Université d’Orléans 1587–1602, Texte des rapports des procurateurs [= Les Livres des procurateurs de la nation germanique de l’ancienne Université d’Orléans 1444–1602, [tome iv]], edited by C.M. Ridderikhof [et] H. de Ridder-Symoens
  • Bundels / Recueils / Collections
  • Ontvangen werken / Ouvrages reçus / Publications received

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