A peace with heretics was anathema to him. Heretics were to be tolerated, not by secular authority, but solely by papal authority--and that merely as the church tolerated Jews, usurers, and prostitutes. In form and content his pamphlets were far superior to the ordinary theological opinions appearing in print, and were therefore well suited for propaganda purposes.
The extreme Catholics, headed by Anselm Kasimir, elector of Mainz, and Franz Wilhelm von Wartenberg, had had his works printed; the copies of the Judicium theologicum found a ready sale and did much to add to the ranks of the extreme Catholics many persons who had previously been friendly to the idea of a conciliatory peace. II, point 9, par. III; Conring, op. Steinberger, op. Judicium theologicum was published, for he felt that the Swedes and other Protestants would use these weapons against the Catholics; and subsequent events proved that this judgment was quite correct.
Concerning the first two and other ecclesiastical princes, a modern authority has said they "were contending less for the faith than for their secular possessions. During the war he had been driven from all these possessions by the Swedes; at the Peace Congress, being without lands himself, he represented Archbishop Ferdinand of Cologne. However, he was so insistent and persistent in defending Catholic rights that, as Trauttmannsdorff affirmed, he very appreciably checked the progress of the negotiations. When he, Wartenberg, and Adami, were derisively called "triumvirs," he scornfully called all other Catholics "trimmers" Lavierer.
From the Catholic, strictly legal, standpoint he was undoubtedly on firm ground in stating that the Protestants had no right to church lands acquired during the Thirty Years' War. But he was especially offensive in attacking the legality and permanence of the Peace of Augsburg, which had been sanctioned in , at least for the time being, by Peter Canisius , the first German Jesuit, founder of the Jesuit Order in Germany, and one of the most eminent and effective promoters of the Catholic Reformation in Germany.
Therefore, some of them demanded that the pamphlet Judicium theologicum be burned by the common hangman. See also above, chap iii. II, point IX, par. They saw clearly that a spirit of conciliation and a willingness to yield to the demands of the Protestants, who were still in control of superior forces, were absolute essentials if peace were ever to be achieved. At the same session of February 16, , Count Trauttmannsdorff, the conciliatory imperial ambassador, in responding to the remarks of von Thumbshirn and Langenbeck, called the "Judicium theologicum a bacchanalian work" the writing of a drunken man.
Benedict Carpzov, Discussio brevis, fol. The person that was responsible for taking definite action against Wangnereck was Maximilian of Bavaria. His Jesuit theologian, Johann Vervaux, had persuaded him that he and Emperor Ferdinand III might sign a peace prejudicial to Catholic interests because necessity demanded it, but that, if better times should ultimately return, the concessions made to the heretics need no longer be observed. III, point V; sec. IV, point IV; Conring, op. On January 3, , he wrote a letter to Caraffa, the general of the Society of Jesus.
After having called attention to the injuries that were threatened to the general welfare and to the Society of Jesus by writings of the type of the Judicium theologicum, he asked the general to take steps to hold Wangnereck in check. He himself was an opportunist and acted as a moderate Catholic; 62 he undoubtedly agreed with his predecessor, Vitelleschi, general of the Order from to , who, after reading Wangnereck Quaestio ardua, commended its author for his erudite work but requested that for the good of the Order the pamphlet remain unpublished. On the other hand, Caraffa did not wish to offend his immediate superior, Pope Innocent X, and Chigi, who did not wish Wangnereck's useful political activities curtailed.
Maximilian, being a good politician, bowed to the papal rebuff. But when in November, , he finally became aware of Wangnereck Responsum theologicum, perhaps nine months after its publication, 67 he was deeply hurt. Wangnereck's new treatise assailed Vervaux's opinions and accused him of bad faith; but what was still worse, it attacked Maximilian's peaceful policies, especially the signing of the Treaty of Ulm in March, , with France and Sweden, and the conciliatory policy that Maximilian and the other moderate Catholics had been following ever since.
This was what Johann Philipp thought in theory. But on November 19, , in a letter of complaint which he addressed to Caraffa, the general of the Society of Jesus, he shows, above all, what deep wounds his pride had suffered. In words of bitterness and irritation, and with the greatest emphasis, he demands an exemplary punishment for the Lindau superior, "this exceedingly bold person. A list of the offending passages in the Responsum theologicum a compilation of Vervaux accompanied the letter.
It is also known that Wangnereck spoke unfavorably of his antagonist Caramuel to the members of the papal court. Of them he says: "What is said of them can be taught, but it is only academic wisdom; practical counsels and theologians are now needed. The changes of time required concessions to the new principles of government. He did not understand the new principle of state and national sovereignty. He was of German birth, had lived all his life in Germany, but had no German feeling; as his opponent Caramuel asserted, "he has no consideration for the distress of Germany, which he does not love.
When only the Catholic religion existed, such fundamental principles could be defended; but as soon as the force of circumstances had helped the non-Catholic confessions to secure great and permanent possessions, it was no longer possible to adhere to these views if one did not wish to proclaim a general war and place into the hands of the other confessions weapons with which to fight the Catholics.
If, according to the views of Wangnereck, the Catholics may not conclude a permanent peace with the Protestants, the Protestants must expect that the Catholics could break every peace as soon as they secured power enough to feel justified in repressing the Protestants with the prospects of success.
II, point X; Conring, op. It was the task of the moderate Catholic writers to weaken or, if possible, to destroy the influence of this work. The first moderate Catholic writers to attack the extremist ideas was the Spanish Johann Caramuel y Lobkowitz , originally a member of the Cistercian Order, later a Benedictine. He was an ambitious person and had received many offices and much recognition for his services to the Roman Catholic church, including the important position of suffragan bishop Weihbischof of Mainz.
Since he had been an agent of Philipp IV of Spain at the court of Vienna, where he became court preacher and court counselor in His services were so satisfactory that the emperor bestowed two rich Benedictine abbeys on him--Montserrat-Emaus in Prague, and another in Vienna. Although Caramuel was an ardent opponent of heresy and a strong supporter of the Roman Catholic church, he used his great learning and independence of thought in answering the Judicium theologicum in such a way as to justify Ferdinand III and Maximilian of Bavaria in concluding a peace that involved the toleration of heretics and the cession of church lands.
At first it appeared anonymously and without place of publication, but later in the year it appeared in a second edition with additions; a third edition appeared in , somewhat revised. In the second and third editions his name was affixed, as was the place of publication, Frankfurt.
German Historical Institute London Bulletin Bd. 38 (2016), Nr. 1
Since the purpose of the work was to create a sentiment for peace in opposition to the influence of the Judicium theologicum, it naturally offended the nuncio and the extreme Catholics, who called Caramuel, along with Vervaux, a "half-heretic," reserving the label "absolute heretic" for the Protestant Dorscheus. For Dorcheus, see below, next section. See the second title under Caramuel in the Bibliography. He affirms that, since the power of the Protestants is so very great, and will not grow less, to refuse to make the concessions demanded now may easily result in even greater losses to the Catholics later.
He asserts that, since Catholic subjects have the right to migrate from Protestant lands to Catholic lands, the Peace of Augsburg and the Peace of Westphalia actually liberated Catholics from heresy, instead of turning them over to heresy, as "Eusebiis" wrongly affirms. He asserts that the emperor is acting wisely when inserting the clause in the Treaty whereby he renounces all right of disregarding the promises of the Treaty.
If he refused to insert this clause, the Protestants, who wish a lasting peace, would not sign a treaty at all. He affirms that the church lands are a constituent part of the German sovereign dominion and belong to the princes. The emperor may turn over to the heretics some church lands that he cannot protect; by so doing he is protecting the church against probably greater losses. Finally, the emperor needs no papal authority to dispose of church lands; he acts on the basis of divine and natural laws, and now especially he needs no permission of any kind when he is granting what he cannot prevent.
Caramuel's treatise was not a logical or consistent argument in all its parts; but it was essentially what Ferdinand III desired, the argument of a devout Catholic which supported a policy of concessions to heretics at the expense of the church in order to secure peace. Furthermore although not stated by Caramuel , it implied a policy of protecting the Hapsburgs against the eventuality of ceding their own personal possessions to the victorous enemies.
Maximilian gave him the right freely to express his opinions on a wide range of subjects, but Vervaux kept in mind the sensitive princely pride of his ruler and was cautious not to give advice contrary to the elector's views. But we must remember that whatever Vervaux did and wrote was a matter of conviction and that he and Maximilian were kindred spirits.
This policy is reflected in his writings, and as a consequence the extreme Catholics regarded him as injuring real Catholic interests. The pamphlet was distributed secretly only to Catholics, but probably through the indiscretion of a Catholic diplomat it was not wholly unknown in the Protestant camp. Johann Crane, and is today found in the Vienna archives. It is written by at least four, possibly five, different copyists, who probably worked in shifts under pressure to combat the antipeace activities of Wangnereck through his writings.
The Notae appeared anonymously; that Vervaux is the author has been learned from the reports of the nuncio Chigi to the papal secretary of state Panciroli. On the other hand, they offended the nuncio Chigi, especially on account of the sentence that the emperor in the face of necessity could take for granted the consent of the Holy See to the ceding of ecclesiastical lands.
We shall content ourselves with discussion of the writings of only two of these Protestant controversialists: Johann Georg Dorsche and Hermann Conring In the years and appeared four treatises by Dorsche Dorscheus , a Lutheran preacher and polemical writer on theology, of Strassburg, who combated with equal bitterness both Catholics and Calvinists.
Chigi held that in Dorsche's work Catholic interests were being injured by a Protestant who was applying Catholic doctrines, that is, those of the moderate Catholics, of whom Chigi disapproved. He builds up an argument favoring the secularization of politics, showing that in past times the secular rulers had the right to deal with ecclesiastical affairs.
Charles V and Ferdinand I were supported by good ecclesiastical opinion in believing that, as emperors, they had the right to call church councils to regulate matters of religion; moreover, they were acting within their rights when signing the Peace of Augsburg. The German ecclesiastical princes had sustained this view. Certainly such authority could not be based on canon law. It was fully as correct to assume that secular rulers had jurisdiction in and over church lands because the existing distressed conditions granted the emperor and the imperial states a certain authority over church matters.
According to the ideas of Pope Innocent III the emperor and the imperial states were not under obligation to ask papal advice in all affairs. Just as under certain circumstances a tax may be levied on ecclesiasts without the sanction of the pope, just so a cession of church lands might take place.
Of all the Protestant treatises written against the Judicium theologicum, the most significant was that of Hermann Conring , the most learned polyhistor of the seventeenth century. He was also a physician of wide experience, a counselor to the queen of Sweden, to the Duke of Brunswick, and to the king of Denmark.
His literary activity embraced many fields of human knowledge; he wrote important works on medicine, anatomy, political economy, theology, and jurisprudence; he is called the founder of the history of German law. Bresslau, Allgemeine deutsche Biographie, IV, This latter device was used by Conring especially in consideration of the yielding spirit that had already been manifested concerning the Protestant demands in the peace negotiations by the Vienna court, supported by the opinion of its theologians.
Actually the "Austrian theologian" was not a Catholic at all, much less a Catholic theologian. This is Conring's statement in ; the last two works mentioned appeared, however, in after Conring had published the Consultatio Catholica. Placius, Theatrum anonymorum et pseudonymorum, pseud. A Protestant might just as well save his energies. So to Conring the end justfied the deceitful means. The writing of the Consultatio Catholica occurred in the last week of in strict secrecy. Conring asserted that Lampadius had arranged for the publication of the treatise without knowing who the real author was.
He stressed the supreme interests of the state, asserted the divineright-of-kings theory, affirmed that the emperor and princes had legal authority to determine everything necessary for the existence of civil society, and that this authority was given them by God. Wangnereck did the princes an injustice when he asserted that they "were usurping a jurisdiction that did not belong to them," for the German church must, under all circumstances, recognize these rulers as princes and judges constituted for the church by God. The princes, in establishing the proposed peace, were not exceeding the limits of their authority.
They were assuming no power over spiritual affairs; such matters were left wholly in the hands of the ecclesiasts. The civil rulers, as protectors of the civil rights of all subjects, were, in drawing up the Treaty, merely using their legal rights to protect heretics and the Catholic church against injustice, which power must rest solely in secular hands, otherwise that power cannot function successfully.
Since that was a time of confusion and distress, there was great public need for the princes to take measures that limited ecclesiastical jurisdiction concerning temporal affairs; but there would be no suspension of the spiritual jurisdiction of the bishops. The bishops were now being deprived merely of secular jurisdiction, which had been granted them by the arbitrary laws of the princes in former centuries.
The princes were now under the stress of circumstances, merely resuming their powers in these secular respects. If, as Ernestus de Eusebiis contended, the lands of the German church were subject to the church and the pope as supreme administrator, the emperor and the imperial states had no actual control over these lands.
This would be a nullification of the entire German system of government, and was therefore scandalous. Such a statement was an appeal to the spirit of political independence of the secular powers. The ecclesiastical princes, when they lost control over heretics and church properties, were giving up merely civil rights, not spiritual or divine powers.
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These civil powers had originally been granted by the secular powers, which through the Treaty were merely resuming their original authority over secular affairs. He clinchingly added, "When discussing this point we should always remember the words of the Savior, 'Render unto Caesar that which is Caesar's.
The bishops, besides being spiritual rulers, had also been secular princes, and as such had sovereign rights in the Holy Roman Empire; and they, like secular princes, could take secular measures concerning the church, but they were acting solely on the basis of princely law. In view of these facts, papal consent to the proposed Peace was not necessary; the emperor and the princes, secular and ecclesiastical, had authority to make disposition of the purely temporal matters in question.
To accept his arguments, as the princes did in practice, meant that politics was secularized, that the secular authority determined what was secular and took measures to assert its authority. If, because of confused conditions, the state found it necessary to resume jurisdiction over affairs that had for a long time been looked after by ecclesiastics, the state was not usurping authority. It was merely making arrangements for the welfare of civil life and signing a peace providing for such resumption of its own authority. This argument was entitled Animadversio in Bullam Innocenti X.
He asserted that "a person, even if he is a Roman Catholic, is permitted, without prejudice to his faith, not to observe papal bulls, much more to reject them, because they are burdened with faults," "that the declaration of Innocent was unnecessary," "quite unusual," "without any precedent," "not useful even to the Roman Curia itself, whether for the present or the future," "is injurious to the Roman Catholic church itself and to the Catholic parts of Germany.
In making the assertions in these two treatises Conring showed himself the most precise and advanced of all the political theorists. Conring, op. His support came from those having a vested interest in conditions as they had been for half a millennium. But his theories could not cope with the new theories more in harmony with the new conditions. Such ideas were offered by Caramuel and Vervaux; they made it possible for their sovereigns and moderate Catholic allies to feel that, as good Catholics, they were actually promoting the best interests of the church if they abandoned the rigid theories of the Middle Ages and adopted a more conciliatory, more adjustable, theory that would meet a situation that might be only temporary.
But Conring, the Protestant, writing as a Catholic, went further than either of them. He stated in a precise way that the state has authority in all affairs affecting the church except purely spiritual affairs, which has come to be the modern theory and practice. The state, which has supreme interests, must, in the face of a great public need, exercise ecclesiastical jurisdiction of a temporal kind, such as protecting the interests of both the Catholics and the heretics. The state has interests superior to those of doctrinal differences.
He once more widened the scope of politics, and also justified its secularization. This section is to present, with less detail, the parallel secularization of political theory, or the secularization of politics in theory. The political theorists held this view regardless of whether they believed in a universal state with the pope as head all kings and princes being responsible to God through the pope or held the divine-right-of-kings theory, which maintained that the secular rulers were responsible directly to God, not indirectly through the pope.
Whether papalists or regalists, these theorists "believed firmly in the divine nature of the state; they looked upon the ruler as God's representative and servant, but only so far as he really in fact carried out the divine purpose of righteousness and justice. To consider the theories of all these thinkers would go beyond the convenient limits of this treatise. We shall need to content ourselves with a brief statement of the ideas of Machiavelli, Hobbes, and Grotius, with incidental references to others holding fundamentally similar views. The source of his political inspiration was antiquity, in which politics had been wholly secular.
He took all his illustrations from classical antiquity, drawing little or nothing from medieval times, or canon law, or the history of the Christian nations. He dealt in a practical way with the problems and objectives of the secular ruler and the ways in which he should exercise power. Principles of religion and morality were relegated to a subordinate place in both theory and practice. He recognized that established religious ceremonies must be held in veneration by the ruler. The secular authority, whether a monarch or the council of a republic, was to exercise full power in its own right, with no dependence on any religious authority.
The principles of government were to be based on experience, and should be of such nature as to insure the supporting good will of the subjects or citizens. There was to be no dependence on papal or ecclesiastical sanction. He was more systematic than Machiavelli and much more clear-cut and specific in developing the modern idea of secular sovereignty.
This revolution had ecclesiastical, as well as political, aspects; and he became convinced that religion as well as politics must be in the power of one person, the king. He makes no reference to the problems arising out of the Thirty Years' War and the difficulties of negotiating peace, which led Conring to formulate the most significant arguments in favor of the secularization of political theory. In the Leviathan he maintained that the sovereign is absolute, not responsible to anyone--is judge of all that is necessary for the peace and defense of his subjects.
The sovereign himself, or through his appointed officials, is judge of all opinions and doctrines, this being necessary to peace, to prevent discord and civil war. The sovereign has the right to decide all controversy. But inasmuch as his doctrines are confused, incoherent, and inconsistent, and since he avoided any awkward considerations of papal influence in politics, we shall omit a discussion of his ideas in this treatise.
For a justification of this decision the reader is referred to J. Allen, "Jean Bodin", in Hearnshaw ed. Seton-Watson ed. Since the sovereign has "the right of judging what doctrines are fit for peace," therefore he is himself pastor of the people and no one may lawfully teach religion to the people except by permission and authority of the sovereign. All pastors derive their right of teaching and preaching from the sovereign. The sovereign has the right to perform all manner of pastoral functions, to preach, baptize, administer the sacrament of the Lord's Supper, to consecrate religious edifices, to "sit in judgment and hear all manner of cases.
He has supreme power in all cases," civil and ecclesiastical. Through his writings the secularization of political theory may be regarded as having been achieved in England. For illuminating comment on Hobbes as a political theorist see: Laird, Hobbes, pp. To be sure, Jeremy Bentham hardly referred to Hobbes; but Bentham's followers, James Mill , George Grote , and John Austin very definitely showed the influence of Hobbes. His ideas were different from those of Hobbes but were similar to those of Conring inasmuch as he affirmed that both state and international law must be free from the influence of the papacy and theology.
After the middle of the seventeenth century the pope repeatedly took occasion to protest whenever the states of Europe reaffirmed the terms of the Peace of Westphalia or in other ways violated the claimed ecclesiastical or secular rights and authority of the papacy or the Catholic church. But all such protests were without effect. The papal nuncio, Bevillacqua, who had been empowered to act as mediator by Innocent XI , 1 was a mediator only in a restricted way.
The Protestant powers were not willing to accept Bevillacqua as a papal mediator but were willing to recognize him as a royal representative, that is, as a representative of the temporal head of the Papal States. Much preliminary negotiation was also necessary to provide a Catholic chapel so that the nuncio and his suite could worship in the Protestant Netherlands, and that other Catholics could have easy access to the nuncio's headquarters.
And if by chance it were possible to achieve anything for the benefit of the church, [he should] make use of the Catholic ambassadors. Sa correspondance avec ses nonces, I, Pastor, op. He also requested that the Catholic representatives register this protest in their acts. When finally the Peace of Nymwegen between France and the Empire had been signed, February 5, , Bevillacqua issued a longer protest against the Peace of Westphalia and against the Peace of Nymwegen in so far as it confirmed the Peace of Westphalia. He explained that, inasmuch as the fundamental characteristics of the Peace of Westphalia were the bases of the Peace of Nymwegen, he had absented himself from the signing of the Peace, since he did not wish, through his presence, to appear to be giving his sanction to the Peace of Westphalia.
The date of the Latin protest in the Latin form is February 19, In a letter written February 25, , to Cardinal Buonvisi the nuncio at Vienna the papal secretary of state, Cardinal Cibo, stated that the pope was content with a protest against the Peace of Nymwegen because it represented a renewal of the Peace of Westphalia; he wished nothing further, for he rejoiced over the conclusion of this terrible war and hoped that the Catholic princes could soon unite in repelling the barbarism that was threatening Catholicism in so many places, especially in Hungary and in Poland.
The secretary stated further that Buonvisi, keeping this papal attitude in mind, should encourage the emperor to ratify the Peace of Nymwegen in case its terms were acceptable to him. Now there was to be no thwarting of a peace that was merely reaffirming the previous injuries done the church.
For the first time in the history of the Christian states a kingdom had been created without there having been requested or secured the sanction of the papacy, the oldest organized power in European Christianity. II, Part I, p. In his breves he usually quoted the passage from Hosea: "You have ruled, but not through me, and you have become king, and I have not recognized you," this indicating how conscious Clement XI was of being divine vicegerent Statthalter. Before the death of Frederick I in all the Italian states had recognized his new title; Portugal had recognized it in II, Epistolae et brevia selectoria, pp.
I, Orationes, pp. Spain waited until the close of the War of the Spanish Succession; Poland ceased resisting the change in ; the Teutonic Order expressed its dissent the last time in In connection with the movement called "Febronianism," the Catholic church in Germany had had a vexing dissension as to the relative power of the archbishops and the two papal nuncios, one of them newly appointed in Munich and the other, the nuncio of Cologne, whose office had been recently revived. The four archbishops of Mainz, Trier, Cologne, and Salzburg had sent representatives to Ems to draw up the famous "Punctation of Ems" In this document the archbishops resisted the infringement of their metropolitan rights that would follow if the papal nuncios were to assert complete control of German ecclesiastical affairs.
In the controversy that followed, Emperor Joseph II inclined somewhat against the nuncios, whereas the king of Prussia took an attitude against the "Punctation. VI wrote the first letter that a pope ever wrote to a "king of Prussia. The elector had in embraced Catholicism in order to become king of Poland in addition to being elector of Saxony. Augustus promised that no religious changes would be made, that Catholics would not be permitted to erect schools, academies, colleges, and monasteries, and that no churches would be conceded to the Catholics.
However, Saxon religious conditions remained unaltered. So Joseph bought the good will of Charles by signing a peace that obligated the emperor to tolerate the Protestants in Silesia as they had been tolerated previous to All innovations to the advantage of the Catholics since that date were to be canceled. Protestants were to have the right to worship, build schools and churches, hold consistories, and fill public office.
II, Epistolae, pp. Landau, op. He closed with an expression of regret for what had happened, and promised to permit no further injury to Catholic interests, and would even attempt to repair the injury done the church. When those difficulties had been terminated, Joseph, in order to pacify the pope, issued a decree against the apostasy of Catholics to the Protestant faith in Silesia, an occurrence that was annoyingly frequent. Expressing his sorrow over the injury done the Catholic cause through the tolerance of heretics in Silesia, he rejected the Convention, declared it null and void, and admonished the emperor to do his utmost to make it ineffective.
In retaliation the king of Prussia ordered the detention of some Cologne ships in his territories and the arrest and detention of citizens of Cologne. After an ineffective royal appeal to the emperor, and an intervention by Protestant princes, an agreement was reached whereby the city of Cologne granted certain rights of free exercise of the evangelical faith in the residence of the ambassador within the city of Cologne. Catholic historians ordinarily do not mention the incident. But Clement XI further protested because the Peace of Baden recognized a ninth electorate which had been erected for the benefit of Hanover in 45 and because it recognized the kingship of Prussia, 46 granted certain Catholic territories to Protestant princes, 47 and disposed of Naples and Sicily as though the pope had no suzerain rights over these realms.
XXX, of the Peace of Baden. See sec. Parma and Piacenza, which threatened to become extinct on the death of the reigning duke. The protest stated that these rights had been secured in a peaceful manner and that Paul III had given this duchy as a fief to Peter Aloysius and the House of Farnese. As soon as the holder of a fief died, his first-born son was always sent on a solemn mission to the Holy See requesting a renewal of the investiture.
All holders of this fief had annually faithfully paid the fees Zinsen as a permanent testimony of papal suzerainty over the duchy. Immich, op. The papal commissioner, Monsignor Oddi-Spinola, who had been appointed to take possession of the escheated duchy, posted the papal brief on various church doors in Parma and elsewhere. But this was no longer a time when papal breves instilled respect in the emperor and kings. Austrian troops appeared in the duchy and tore down the breves from the church doors. Count Stampa, the commander of the Austrian troops that had moved into the duchy, declared the papal breves and protests null and invalid; he asserted that no one need be bound by them or value their contents.
Emperor Charles VI received the oath of allegiance of the guardian of Don Carlos, who was still a minor, and formally bestowed possession of the duchy on the guardian in December, Representatives from all parts of the duchy swore allegiance to the young Don Carlos without showing the slightest consideration for the papal protests and admonitions.
Monsignor Oddi-Spinola protested anew, from Bologna, against all these proceedings. The next year Don Carlos appeared personally and took possession of his duchy without being in the least concerned about the suzerainty of the pope. VII; Krones, op. The first protest, which was issued January 23, , the day before the election, declared that, inasmuch as the Holy See had never sanctioned the admission of the non-Catholic Duke of Hanover as one of the imperial electors, his admission to and participation in the intended imperial election was invalid. In this protest he renewed the papal protest against the Peace of Westphalia, which the newly elected emperor was expected to observe but which Innocent X and all succeeding popes had rejected in so far as it injured church interests.
He protested especially against Article XIV of the Peace, by which the elector palatine had been restored to the full possession of his rights as elector. In response to repeated papal requests the Catholic electors had promised to put an end to this situation; however, under the pretext of not wishing to disturb the electoral proceedings, nothing had been done. But the papacy hoped that in the present election this situation would be terminated. The elector of Hanover complained because the elector of Mainz had accepted and registered this protest at all and had given the nuncio a confirmation of the registration thereof.
He also requested that such protests should, in the future, not be accepted in any case. The elector of Mainz requested that the college regard this acceptance of the protest purely as a formality, a mere private acceptance. The electors of Saxony and Brandenburg thoroughly disapproved of the whole proceeding, whereas the representatives of the remaining or Catholic electors Treves, Cologne, Bavaria, and the Palatinate declared that they had received no instructions on this point.
Benedict XIV claimed that he had the right to decide whether the election had been conducted legally or not. When the nuncio wished to present the customary protest against the confirmation of the Peace of Westphalia and the ninth electorate Hanover , the college of electors forbade all the notaries of the city of Frankfurt, on pain of punishment, to assist in the slightest the proposed registering of the nuncio's protest.
Not being able to achieve his purpose, the nuncio left Frankfurt. France was allowed to retain Avignon and Venaissin, which had been in papal possession since the fourteenth century but which the French Republic incorporated as integral parts of France in These protests and notes were similar in content and purport to the notes that he had repeatedly sent in October and November, , to Prince Metternich and others for the purpose of stating the papal viewpoint concerning the intentions of the Congress.
The note also protested against the loss of Ferrara and Comacchio and lands north of the Po River, taken from the pope and given to the emperor of Austria and his successors as rulers of Venetia, which the Congress had also ceded to the Hapsburgs. The statesmen at Vienna were not disturbed by the threat of protest against the Treaty; they did not deem it necessary to plan any action to make the protests ineffective; they even complied with Consalvi's request that his protests be inserted in the protocol, it being clear that such action on the part of the nuncio was merely a formality.
In the year approximately threefourths of the Papal States the Romagna, the Marches, Umbria were incorporated into the new Kingdom of Italy; and on September 20, , the last province, Rome, met the same fate. When Austria, Russia, and Prussia met at an international congress in Warsaw in October, , they adhered to the principle of non-intervention in Italian affairs. He declared that this rebellious action of the House of Sardinia Savoy was a breach of all the solemn treaties guaranteeing the sovereign independence of the Holy See.
He also implored all princes to send him the aid necessary to defend his independence. He also said that the pope would never be able to recognize the title of king of Italy, which the king of Sardinia had arrogated to himself, 11 an adjustment that his successor, Pius XI , was able to make in , however, as we shall observe later. On September 30, , Pius IX, in an allocution, expressed himself once more very violently against the king of Sardinia and his predatory acts. September 20, , a protest was issued once more, Pius IX having ordered that the only defense to be used "should consist of a protest, which would be suitable to establish the act of violence.
He declared the action of the "king of Florence" where the Italian capital had been since to be an unworthy and sacrilegious confiscation of the sacred lands of the church. The act was null and void and could not prejudice the rights of sovereignty and possession of His Holiness and his successors. The pope declared that, in order not to be found remiss in the sacred duties of his high office, he protested against all usurpations of his temporal authority that had taken place recently or might take place in the future. All such usurpations he declared null and void.
He asserted also that, because of such violence to his temporal authority, he was in a state of captivity, and therefore not in a position to perform the high duties of his office freely and without restraint. All persons that had participated in robbing him of his lands since he declared to be excommunicated. In this period the papacy wished to have no legal connection with the Italian government. It wished to obliterate every appearance of subordination. But on reconsideration the plan was regarded as unfeasible because, although the Italian government was willing to protect the cardinals in leaving Italy for the election, it would not promise to guarantee them a safe return to Rome.
These aspects of the subject will be considered in the next two sections of this chapter. Pius IX, in spite of his financial distress, refused to accept the first annual payment that he was to receive from the Italian government as provided in the Law of Papal Guaranties in compensation for his loss of revenue from the Papal States.
He, as well as his successors, avoided every act that might seem to imply giving papal consent to the spoliation perpetrated by the House of Savoy. As early as February 29, , Pius IX had, through the Non expedit, forbidden Catholics to participate in the elections of the Italian national state either as electors or as elected. In other regions the Catholics voted in parliamentary elections in almost as great numbers as in local elections.
In an encyclical, Certum consilium, issued to the Italian bishops, he allowed them to suspend the rule and grant good Catholics the right to vote in national elections if thereby they would prevent the election of a "subversive candidate. But the Non expedit remained theoretically in force; the papacy admitted only partial repeal, 30 until in November, , Benedict XV finally abolished it. He continued to exercise the right to send and receive diplomatic representatives; at certain courts the apostolic nuncio had precedence over other ambassadors.
Even non-Catholic countries, such as Russia, Holland, and Prussia, maintained diplomats at the papal court. On special occasions Great Britain sent missions to the pope, as did the United States government in , when it sent William Howard Taft to Rome to negotiate the purchase of the Catholic friars' lands in the Philippine Islands. A number of South American republics also had ministers accredited to the Vatican. After the pope still received royal honors, carried on negotiations with temporal sovereigns on equal terms, and remained a great factor in worldpolitics.
He was not invited to the Congress of Paris in or to the Conference of Berlin in , although at both of these congresses the powers discussed the means of persuading Turkey to respect the rights of its Christian subjects. For a list of the thirty-six nations maintaining diplomatic representatives at the Vatican court in , see Williams, The Catholic Church in Action, p.
The Dutch government, in issuing the final invitations to the powers, omitted sending an invitation to the papacy. On April 11, , in a discourse to the cardinals that was published in the press of the world, he commended the spirit of the Peace Conference and took it under his protection. When the Conference opened the second week in May, the Osservatore Romano, the official papal newspaper, at the instigation of the Vatican, published an article that was quite sympathetic with the Conference and contained no recriminations. In a letter to Queen Wilhelmina, in which the pontiff thanked her for her intention of inviting him to send representatives to the Conference, he expressed his hope that the movement might succeed in establishing a more peaceful era.
He asserted that he as pontiff would do all in his power, under the abnormal conditions prevailing, to promote the cause of peace. This dignified papal attitude caused the pope to be widely admired. The pontifical calmness was quite in contrast to the agitation manifested by Italy and its representatives at the Conference, whose chief aim seemed to be, not to promote the cause of peace, but to prevent the pope from being recognized as a sovereign, an action that might once more open up the Roman question.
But Leo XIII tried to allay the fears and suspicions of the Italian representatives by ordering his intelligent internuncio, Mgr Tarnassi, to absent himself from The Hague for several weeks. The situation of the papacy after the spoliation of and and the enactment of the Law of Papal Guaranties had never received any formal international ratification. Therefore the papacy held that, if a Catholic ruler were to enter Rome to pay an official visit to the Italian king in the Quirinal palace, such ruler would be giving his moral sanction to the spoliation of the pontiff.
All Catholic sovereigns respected this papal attitude. King Carlos I of Portugal, for a similar reason, abandoned his plans to visit his relatives in Rome. After diligent search, corroboration of this incident could not be found anywhere in the sources available to me. Pedro II was in Europe in and , "Eminent Persons", London Times , V, ; was accepted as the probable date of this incident on the basis of Schmidlin, op. Pius X , sent a confidential protest, dated April 28, , to France and all the other states that had direct communication with his court.
In this protest he pointed out that "through this official and festive visit to the king of Italy, taking place in one of the apostolic palaces [the Quirinal], the French president was publically sanctioning the spoliation of the pope. As a consequence the Quirinal was visited in April, , by the monarchs of Belgium; in July, , by the president of the Argentine Republic; and in November, , by the monarchs of Spain.
During each of the years and he made two appeals to the powers to compose their differences and seek peace. A reconciliation was desired by all the popes, since the time of Pius IX, if only it were possible to receive a recognition of papal rights in law as well as in fact. The popes had never been molested in the Vatican, and they all craved some sort of reconciliation.
Both parties were willing to make compromises. The pope recognized the Kingdom of Italy, thus removing from the Italian monarchy the stigma with which it had been regarded by non-Italian Catholics. The pope was willing to accept a cash sum and a stipulated amount of interest-bearing Italian bonds as compensation for his loss of income from the Papal States as they had existed in The ultra-nationalist Fascist state, being in need of all the social and psychological support that it could secure, was willing to abrogate the unilateral Law of Guaranties and to make terms with the head of the great international Roman Catholic church, recognizing Roman Catholicism as the official religion of Italy and consenting to the giving of Catholic religious instruction in the schools of the nation.
The pope was also given absolute sovereignty over a small state, with an area of about acres, which Pius XI affirms is adequate to enable him to exercise his spiritual functions independently of a particular nation or group of nations. The pope now controls a "sort of spiritual District of Columbia," in which he has full authority. That the real realm of its influence lies in spiritual, moral, and broadly social fields. That in international politics its attitude will be one of neutrality; that it will not seek to enter the League of Nations, and that it would refuse to enter it even if an invitation were extended by courtesy.
The head of the church at last relinquished his claims to be final authority in secular affairs. The counterclaims of the states that they should have full power to determine the sphere of politics, both national and international, had been recognized by the papacy. The pontiff had finally conceded that there is a sphere of human affairs in which he will take no part. Politics, national and international, had been secularized. The secularization of politics, which had in practice been established in by the Congress of Westphalia, but which had not been accepted as legal by the papacy, now, after almost three centuries of active and tacit protest, had at last been recognized by the papacy as a legalized situation in a solemnly sanctioned treaty.
Politics was finally secularized in , with the full and willing consent of the power that had for eight and a half centuries actively opposed it. THE reader may well have gained the impression that in the final eventuation of the long struggle against the secularization of politics, the papacy and the Roman Catholic church had suffered a humiliating defeat.
In the minds of Wangnereck and his supporters in the seventeenth century that was true; 1 but, in the adjustments of later centuries, Catholic thinkers themselves have been able to look upon the secularization of politics as a blessing in disguise for the church. The original purpose and activity of the Catholic church were not political, but spiritual and moral.
The assumption of political power by the church and papacy was only a temporary development, although the exercise thereof endured for many centuries. The entry of the church into the sphere of politics had been made necessary by the political confusion incident to the decline and ruin of the Roman Empire and the political chaos of feudal times.
When the national monarchies of western and central Europe had developed adequate governing strength to take over the political functions of the state in an ever increasing degree, and when the church, against its will, was eliminated as a political influence, it was all the more able to confine itself to its original scope of activity: spiritual, social, and ethical leadership.
In losing control of the Papal States the Holy See has got rid of its characteristics of caesaropapism, under which its spiritual power was too often subordinated to the secular. The pontiff, in terminating his protesting attitude when entering the Lateran Accord of , has freed himself from a situation that had had a profoundly noxious influence on the ecclesiastical, religious, and moral situation, not only in Italy but elsewhere as well. Actually, in being freed from his secular power, the pope exerts a greater moral influence than formerly.
In support of such affirmations the following citations from Catholic authors are pertinent: H. Brann, in discussing the Relation of the Church to Human Progress," remarked, in , The Church may not be strong in temporals; but she is spiritually stronger. For further similar Catholic statements see: John K. All her troubles, all her weaknesses of the past, from Charlemagne to our day, arose especially from her desire to maintain and augment the temporal power.
With the cessation of this effort, the Pope, while presenting himself to the faithful of Christendom as despoiled, persecuted, and a prisoner, is in reality richer, freer and stronger. In Hungary, local voting rights were granted to some tax-paying women in In some Austrian lands, women could vote for municipal councils and provincial diets throughout the 19th century as long as they paid with a certain amount of property or income taxes. In spite of the early results of the civil era and the Hungarian Soviet Republic, there was a regression in political rights after Papen, a prominent monarchist and devout catholic, who in November was nominated by Hitler Commissioner for the strictly religious catholic Saar Basin, followed his mission there to build a bridge between altar and crown, i.
His reputation in the Saar Region rested upon his marriage with a daughter of an influential industrialist and his signature of the Concordat with the Vatican, which he had negotiated on behalf of the Reich Government in spring This law introduced, inter alia, new provisions for legal and administrative sanctions as well as criminal penalties which went considerably beyond such previously existing provisions.
German Imperial Banking Act; banking institutions; emergency decree; banking system; banking supervision; banking investigations; committee of enquiry; legal sanctions; administrative sanctions; criminal penalties. Arnd Koch : Das Polizeistrafrecht des Using Germany as an example, this article is intended to demonstrate that statements on the scope of punishment remain imperfect without consideration of the law of police contraventions. The article addresses the astonishing extent of penal power by the police in the first half of the 19th century as well as fundamental criticism by liberal scholars of criminal law.
The article presents a first overview of an undeveloped field of study and is intended to stimulate more detailed research. Over the past fifteen years, Hungarian literary historians have outlined an idea of an interdisciplinary research program that aimed at exploring the early modern history of Hungarian political thinking. One of the most important elements of the proposed work has been to ensure the availability of the texts to be analysed or analysable for the purposes of research.
The texts to be considered for research purposes are coming from highly various genres. One of the less well-known and less exploited types of texts to be analysed are pamphlets disputations that are related to the politics of the period and that educated the dozens of Hungarian peregrinating students who were raised in the 17th century.
Contemporary students could gain an insight through these texts and disputes into one of the most popular disciplines of the era, the fundamentals of political science. The study and its annex attempt to identify all the disputations that were protected by students from Hungary or Transylvania at a university of Germany and the Netherlands in the 17th century. It gives an overview of the role of the disputes in the education and their place in contemporary political science.
It compares the features available from the database of disputes protected at German universities with the similar data from its own collection. In these so far underrated works, we should recognize the first traces of theoretical foundation of the Hungarian political thinking. Hungary; German Universities; political science; early modern universities; education history. After the years of an indiscriminate Globalization, it is to see if a universal statute of international law does really exist.
And this for several reasons: first of all, the problems of settlement, accountability, justiciability of the decisions in a broad sense are yet to solve. All that is so despite the fact, the Global Law is not considered formally a de iure cathegory. The argued arguments are remarkable and in some way very original. Thank to these theories, it is possible to establish some compass points in the relations between international and regional institutions, for example UN and European Union.
The fact is that no one can affirm the existence of an undiscussed or at least most accepted authority at international level. Notwithstanding a new kind or relations between these actors is now arising: ius gentium or ius inter gentes? Gal Amir: or ? No Room for Westphalia in the Middle-East.
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The article concludes with a possible justification for this challenge of the state's sovereignty, rooted in ideas of legal pluralism. Treatise on prescriptive and sociological-legal levels of the aspects, consequences, force and effect of the Constitution of the SR in the years In the course of four months of the year the Constitution acted as a basic law of the national republic statehood of the SR within CSFR, it provided the form of legal extinction of federation and the rise of two sovereign republics. As a constitution of a sovereign state it was in force by the year , until the accession of the SR to the EU.
Twenty years of history of the SR Constitution were marked by ten constitutional amendments to the supreme law. The changes occurred in the period between to The Slovak Republic as an International entity is morally and legally continual with the Slovak, national and anti-fascist statehood. The purpose of the paper is to define cameralism and political sciences in the context of the second half of the 18th century in the Habsburg Monarchy considering in particular the lands of the Bohemian Crown, to characterise enlightened absolutism and to describe the ideational background and the formation of the scientific basis at the universities of Vienna and Prague.
The paper shows that the basic thesis of cameralism that the welfare of the state depends on good and complete legislation, precise compliance with laws and educated civil service in combination with the enlightened philosophy formed the foundation of the modern codification efforts, the formation of tertiary education in economics and administration, legislative regulation necessary for economic welfare of the state, populationism and agricultural reforms.
The political sciences, reflecting in terms of content and form the enlightened absolutism, became the theoretical foundation of the reforms of Austrian monarchs Maria Theresa and Joseph II. The paper introduces in more detail the professor and Hofrat, Joseph Sonnenfels — from Vienna, Joseph Ignatz Butschek — from the Prague University, and some of their economic ideas which reflected in the reforms and measures of Maria Theresa and Joseph II. The paper focuses on agriculture and the proposals for dividing land into lots, the so called Raabschen System, and the formation of Grain contributory fund.
The study presents opinions on the liability for crime with unintended results formed before in Hungarian criminal jurisprudence and codification. It analyses the four tendencies dolus indirectus, culpa dolo determianata, aggravation, transient category of German criminal law, which was used as a model in the literature of Hungarian criminal law published from the middle of the 18th century to manuals, studies , as well as in textbook manuscripts and bills.
The transient category does not occur among these, and aggravation can only be found in one bill The wide-spreading of Feuerbach's theory started with a textbook manuscript in , and it has become known and at least partly accepted by every author since In the s and even for decades before and after, gratuities were paid in advance as an illegal but socially legitimate form of bribery. During the history of gratuities in Hungary, it has always been a crucial question whether to pay the gratuity to the physician in advance or only after treatment.
This Code of Medical Ethics forbids physicians from accepting any payment from other physicians for medical services. However, in other cases, the Code permits the acceptance of payments for medical services as a remuneration for self-employed persons. According to the Corpus Hippocraticum, the physician is only allowed to accept money for medical services after treatment and the physician is not allowed to force the patient to pay. Gratuities for physicians in Hungary seem to be inherent to the low earnings among physicians, and the situation is similar for nurse practitioners.
This year we celebrate the quincentenarian anniversary of the printed edition of the Tripartitum. In the Tripartitum, there are different terms, such as ius commune, lex communis, communis opinio, etc. In this paper, the author shows that these terms, especially ius commune and lex communis are referring to well-known authors of the ius commune Bartolus, Baldus, A.
Aretinus , although their names are not mentioned. In accordance with the long-standing European legal tradition, these terms are synonyms of ius commune in Hungary, as well. During the period after World War I, the state's interference in the relations of Civil Law and economic procedures was extremely limited.
The commonly accepted understanding was that the price of the different commodities was regulated by the effect of demand and supply. Any intervening could only be temporary and in cases if a catastrophic circumstance occurred. As opposed to this, if these processes were so severe, that they affected the economic life due to their longitude and magnitude, then the need for regulation arose. The same thing occurred after World War I, which had a long-lasting effect on Civil Law, especially if we take the economic separation and the changes in the production and consumption processes into account.
All of these made the appropriate regulation of the matter of prices a necessity. It can be assessed that the state proved to be extremely strict when it came to sharking profiteering cases in the economic life. The war and the following economic relations upstaged the individual needs. To protect the consumers, several actions deemed to be punishable, if certain ploys resulted in unfair profiteering incompatible with contemporary economic morals. Self-defense is one of the oldest legal institutions in the Hungarian law having the greatest traditions, the rules of which were already included in Act No.
V of called Csemegi Criminal Code. The main issue of this study is how the rules of law concerning self-defense were implemented in the case-law of the Royal Court of Justice Debrecen between and For the purpose of finding the right answer to this question I have reviewed nearly boxes stored under number VII. After analyzing the decisions related to self-defense, I have drawn the conclusion that we cannot say there was a coherent and consistent case-law regarding this legal institution; I believe a long process of development has been required to fill the conceptual elements constituting self-defense with substance.
The author analyzes in the first part of his article the influence of the Byzantine legal tradition on the development of private law in Georgia. Special emphasis is given to the code compilation of king or emperor Wachtang VI in the first half of the 18th century. The comprehensive code of Wachtang VI is based mainly on Byzantine law.
In the second part of the study the structure, the main institutions as well as the sources of the Georgian Civil Code promulgated and put into effect in are analyzed. The author outlines that the redactors of this code availed themselves of the scholarly achievements of the German pandectist legal science based substantially on Roman law tradition. The redactors of the Georgian Civil Code did not adopt the concept moniste whereby the Civil Code of Georgia is no code unique? Alexander I. The views concerning the Roman law concept of ius naturale basically come into two groups.
Some authors accept the existence of ius naturale as practically binding law, whereas others regard it a pure philosophical Gedankenexperiment. This twofold state of ideas on ius naturale are fuelled for the most part by the contemporary Meinungsklima, though primary sources also raise some important issues of interpretation, increasing obscurity of this notion. In this paper we set out to give a brief outline of the abstract approach and concept of ius naturale put forward by Ulpian at the beginning of the Digest.
In addition, we also try to follow the reflections and evaluations by secondary authors on this topic, trying to collect the most common arguments and counter-arguments of this topic. This paper studies the social and legal background of public constructions of antique Rome in the era of the Roman Republic. Being a financial lawyer, I was intrigued to find out more about the ancient rules of using up public funds and what corruptive and cultural influences shaped these procedures. I was also interested in finding similarities between past and present public procurement practices.
In my work, bedsides the original sources, I used the monographs and summative studies of contemporary authors as well as my own expertise acquired as a public procurement consultant. Criminal offenses committed against road safety in the Republic of Albania have brought about harmful consequences to human life, health and assets and not only to them. This topic has been selected as a field of scrutiny based on the highest interest it bears to human life as well as with the prospect to render the least contribution possible to the enrichment of Albanian criminal law opinion with special view on criminal offences committed against road safety.
Understanding road types and sense based on Albanian customary law occupy a special place in this work paper. Relying on the current criminal law, knowledge and analysis of the criminal offences regarding the violation of road traffic rules in Albania, with special focus on years , the Albanian monarchy and the post period of the Second World War comprise an important element of this work paper. Patricia Zambrana Moral: El transporte en la Ordenanza de la marina francesa de This contribution, relying on preliminary publications, picks-up the performances rendered by the Commission for drafting the Codex Theresianus as a general Civil code for all Austrian hereditary provinces within the period between and at Brno.
According to these efforts a singular script, conserved by the Moravian State Archive, is dealing with the introduction of the Codex Theresianus. It offers an insight into the methods of applicating and practising sources of law by the members of this commission under the leadership of Joseph Azzoni, an expert on Bohemian law. For this reason those sections within this draft, which are dealing with customary law and legal interpretation, will be edited in the annex to this contribution.
Alterations in advocacy during the second half of the 20th Century before juries in English and Welsh courts, are considered. Heidi R. The Siete Partidas, the famous law code, of Alfons X.
Origins and Beginnings of Censorship in Germany
The central question is, which functions has the text besides being a law code? The encyclopedic character of this work, provides an insight into daily life of medieval Castile and mirrors the historical frame in which it was written. But, unification also means a centralization of the power which was embodied by the king. The fact, that this was not completely accepted by other powerful people of that time made it necessary for Alfons X.
Enlightenment Philosophy and Hereditary Monarchy. Hereditary monarchy and enlightenment political theory hardly seem to be reconciled at first glance. And yet, the advantages and disadvantages of monarchical succession according to lineage were a continuous subject of debate between some of the most prominent enlightenment thinkers. Outlining this debate, the paper at hand gives an — even if eclectic — account of a controversy that spans over more than two and a half centuries.
Europeanisation of legal scholarship and legal education facilitates the emergence of comparative legal science as a promising fresh tool to discover similarities and differences between two or more jurisdictions and their development in the past through their comparison. Yet, the specific methodology of such studies is still not clear. Some legal historians hold the opinion that comparative legal history does not or should not have its own methodology other than that of comparative law.
Others warn against imposing on legal history the contemporary agenda and toolbox. The author of this article aims to clarify this debate by examining the prospect of applying one of the most popular methods of comparative law — the functional one — in the domain of legal history. On the basis of several examples from European legal past he claims that examining the functions the social purpose of legal norms can help legal historians in three ways.
First, to determine the objects of comparison and the sources of analysis, despite the variety of verbal shortcuts the initial stage of research. Second, to analyse legal norms from the perspective of solving social problems in the past, to study the 'law in action'. Third, to arrange the results of the research according to meaningful criteria at the final stage. Herger: Die Mitgift. The author of this essay used original archive records of civil cases from the Baranya County Archives, and analyzes the form and content of the dowry in the everyday life during the second half of the 19th century.
Around the world we can face with a big diversity in the voting systems.
Within certain limits governments have the right to determine how many votes a single citizen is allowed to cast, and how. Therefore we can also find majority-, proportional- and preferenital electoral systems even only in Europe. Single- and multiple-vote systems are neither unfamiliar.
While the vote-transfer system is currently employed in Malata and Ireland, until then Germany applies the personalised PR-system. Electoral system in Hungary have changed over time. According to Act XXXIV of , until , the electoral system was an archetype of mixed voting systems: in it, it is possible to gain a mandate both in a single district and through party lists.
The Parliament operates with representatives. It is still a mixed system, but there are only mandates can be won: in relative majority single constituencies and 93 on a national list. Since it provides compensation after the votes cast in single districts, it is also, essentially, a compensational system.
A Historical-Legal Approach. In the context of the testimony of ancient legislature traditions, particular attention should be paid to the legislative branch and the development of parliamentarism as an invaluable asset of the Albanian people. These institutes are shaped in a manner that is conducive to the development and consolidation of the Albanian state. From time to time they have remained solid in relation to the international jurisprudence, thus enabling the development of an original parliamentary tradition whose roots are deeply rooted in Albanian customary law.
In this paper, the stages through which the Albanian parliamentarism has passed constitute an important part. The Albanian historiography considers the Vlora Assembly of as the embryonic stage of the contemporary Albanian parliamentary system. In particular, this paper writing will duly consider with the deserved attention the modern Albanian electoral legislation and its specifics. Acknowledging the stance of Savigny on the organic connection between law and nation as correct, I will attempt to resolve within this paper if the term of 'legal tradition' may also be applied to the Polish nation.
The Code of Obligations, which was drafted in a country recently reborn following over a century of political non-existence, is a particularly fitting object for such an analysis. I will try to show that national identity in the area of law may be shaped not only by the use of 'indigenous' norms in the legislative practice, but also by the consolidated, centuries-long tradition of implementation and adjustment of foreign laws to the current social needs of a given society.
I will expound that the existence of a national legal tradition does not necessarily require the simultaneous existence of a nation state. For this purpose, I will perform a comparative analysis of Polish law throughout time, starting from the 16th century, when Poland was a stronghold of power on the geopolitical map of Europe, all the way to the Second Republic of Poland and the Code of Obligations. Only a broad research perspective will make it possible to observe the recurring mechanism of drafting and application of law, thus enabling the identification of legal tradition.
The Polish legal tradition is based on both the method of adjusting law and on normative contents. The method consists of implementing foreign principles, that is of adopting a specific - in this case: foreign, normative content, which remains foreign only until it has been accepted by the society as a collection of laws of national character.
Thus was the situation in Poland both before the partitions and in the interwar period. Of course, the undertakings of the Codification Commission that drafted the Code of Obligations may be assumed to have been unconscious, yet it does not deprive these undertakings of their traditional quality. This is due to the fact that the stance of the legislator and of the society toward the law is shaped by the spirit of the nation, in which a more or less conscious transmission of values and principles takes place, and these values and principles are capable of persevering also through periods of social disintegration, as was the case of Poland under partitions.
The present paper deals with the history of abolitionism in the main European states. This essay first introduces the course of abrogation of capital punishment in its Italian cradle, then it details the steps by which the status of this kind of sanction changed in France, Germany, Austria, Switzerland, England and the Russian and Soviet Empires during the past centuries and, chiefly, the past decades. The present article covers both the early results of the abolitionist movement in the countries analysed, and the final cessation of this legal institution by which these states discontinued the practice of capital punishment for good and all.
China and Hungary shared a similar memory of socialist experiences in the communist period since Nevertheless, the communist regime was not out of thin air. In Hungary, the story is quite similar. Sooner, the first soviet experiment happened in Hungary, the Hungarian Soviet Republic. In this article the author will introduce the birth of Communist Party and the soviet Constitution between China and Hungary. The rights of citizenship in a commune were characteristically used in Central Europe as a basis of the regulation of nationality of persons affected by state succession, and the peace treaties concluded after the First World War by the successor states of the Austro-Hungarian Monarchy notably included this criterion.
Although the rights of citizenship in a commune seemed more serviceable criterion during at the peace conference than habitual residence in these states, the different domestic regulations concerning Austrian and Hungarian territories and their interpretations by other states caused numerous problems and resulted in statelessness en masse. The aim of the present paper is to analyse the features and the differences of acquisition and loss of Austrian and Hungarian rights of citizenship in a commune, and to reveal their practical and interpterational problems.
This study identifies the problems related to the nationality of persons affected by state succession after the First World War. These problems may also serve as an important lesson for the present, as the criteria that define persons concerned by the change of nationality in modern cases of state succession need to be selected carefully. Already in his lectures and studies in the s he had defined and later redefined, refined and enhanced the term of social administration. His analyses, dogmatical founding and definitions were reinforced by a complex perspective on a wide range of social sciences.
As the founder of a modern synthesis of the science of administration in Hungary, he has also played an important role in reforming social administration that had become more and more important in public policy. He has enhanced the theory of administration with practical experiences of social administration and with the results of novel research on the subject. The Presidency regulates religious affairs, yet does it really serve the principle of secularism in Turkey for more than 80 years?
This clear paradox was the main reason of my choice of subject in this paper where my aim to map the legal basis, main principles and foreign policies of this Office. For the first time the right for a reasonable remuneration was set up in the German law. Besides the representing part of this article - which describes the economic situation of the creative industry, the position of authors and the owner of the rights, as well as the resulting question about motivation of the authors and the importance of a new law - the article gives an overview about the recent developments of the German copyright and points out the necessity of further improvements of the law to satisfy the rights for a reasonable remuneration of the authors.
History of copyright; Improvement of the rights of authors and artists for a reasonable remuneration. This article deals with the ideas of Europe. Gerichts- und Rechtslandschaften des Rhein-Main-Gebietes im Jahrhundert im Vergleich. The article focuses on the military justice of the Wehrmacht and their investigation organizations.
The armed forces of the Third Reich had command over hundreds of court-martials. These military courts supervise the discipline inside the army. Moreover, they were part of the occupation force of the occupied European territories. Besides the authority over the German soldiers the military judges could also decide on German and foreign civilians. Various police organizations lead investigations for the court-martials of the Wehrmacht: especially the Field-Gendarmerie, which was created in to work for the military justice just as the Geheime Feldpolizei Secret Field-Police. The members of these formations had a bad reputation, because their methods of work were brutal and ruthless.
During the war the military tribunals operated more radical and they always declared more death sentences. They consisted of disguised sergeants and officers of the Wehrmacht and the SS. Part of the Field Hunters were special military courts. But in this case the police had the commanding power over the judges - not vice versa. Towards the end of the war continuously more and more special police and SS units were created, which supervised the area behind the front. Instead of regular military tribunals these units worked together with flying drumhead trials, which let people be executed in the public.
Second World War; Third Reich; military courts; courts-martials; military judges; secret field police. The renunciation of inheritance is a common instrument of the preventive administration of justice. It enables the undivided transfer mortis causa of a greater fortune to a single legal successor. Also, as a consequence the admission of the renunciation of inheritance declared before the death of the testator has a big social relevance. This article intends to demonstrate the legal political as well as the dogmatic development of the renunciation of inheritance. Renunciation of inheritance; contract of inheritance; inheritance law of the daughters; church as heiress.
At a time of social and political tensions, the Imperial Court of Justice rendered a unique judgment addressing the practice of police forces with a method of identification developed a few years earlier by Alphonse Bertillon, an anthropologist working at the police prefecture in Paris. An analysis of the line of argumentation of the judges shows how this decision extended the use of identification techniques and sheds light on the objective of their activities more than a century ago. Identification technique; forensic analysis; Imperial Court of Justice; law enforcement; police authority; wrongful conviction.
Nowadays medical responsibility is a very important issue in private law. However, Roman Private Law had already been concerned about several aspects of civil responsibility of the medical doctor, pointing out, at times, different, but possible solutions, to a particular issue, which highlights the fact that it is a polemical and complex matter. The Humanists Legal School developed in the Netherlands in the course of the seventeenth and eighteenth centuries.
Mentioning deserves also Hugo Grotius, one of the founding fathers of modern international law. Dutch jurists exercised a significant influence also on legal science all over Europe as well as in a significant number of countries territories outside Europe. Their greatest achievement was the application of Roman law to modern conditions.
In the French Code civil was replaced in Holland by a national civil code entitled Burgerlijk Wetboek. It basically followed the French model with the exception that it contained the law of property in two books. It was professor Eduard Maurits Meijers who maintained, before and after the Second World War, that a recodification of private law was necessary.
After the Second World War E. Meijers got adherence with his idea that a new Civil Code should be made. In he was entrusted with the revision of the civil code of Meijers managed to publish the draft of four volumes out of the planned total of nine before his death in The new Dutch civil code does not contain, unlike the German Civil code, a general part but the common regulations of property law and the law of obligations are dealt with in separate volumes.
The new Dutch Burgerlijk Wetboek that came i. In the business life, the company is one of the most significant legal instruments for capital collection and conducting trade activity with limited personal liability. The modern company forms have direct antecedents in the medieval laws. The roots of the limited partnership can be recognized in the rules of commenda and the operation of the medieval banking and trading houses had impact on the regulation of modern stock companies.
The study aims to give an overview about the origin and development of the company types in the Middle Ages.
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Company; societas; commenda; charter company; regulated company; joint stock company; limited liability. In this article, I explore the modernist assumption inherent in discussions of emergency powers, or, the state of exception. I dwell on some of the modern aspects of the state of exception through an overview of some examples from both pre-modern and modern political theory.
More specifically, I examine the history of the political language of the state of exception. I do so in the context of three influencing and interconnected developments: the rise of the state, changes in perceptions of authority, and developments in conceptions of law. In doing so, this article contributes to the robust scholarship on emergency powers and the state of exception by combining an historical analysis of pre-modern and early modern primary sources with an institutional contextualization the rise of the state as well as a political theory and legal theory contextualization.
In essence, for the Hobbesian modern state, the potential temporary constitutional dictatorship is part of the regular sovereign power. Within this power, I distinguish between the exception outside the law and the exception within the law, which are in a dialectical relationship. The exception outside the law, which was the state of exception on which Carl Schmitt wrote, was unimaginable prior to modern times, since it was tied to the modern positivist understanding of law.
Citizenship is analysed as multidimensional concept that includes status, rights and identity. The research question concerns influence of war on each dimension of citizenship. Therefore, in the status dimension, analysed are practices of acquisition of citizenship by naturalizations, and practices of loss of citizenship by dismissals and absence.
In the dimension of rights analysed are passports and changes in migration regime. In the dimension of identity analysed is the issue of loyalty of citizens. The paper shows that the war significantly influenced all three dimensions of citizenship. The research bases on relevant literature, legislation and in great part on archival sources available in the Croatian State Archive. According to the generally accepted standpoint in the historian and comparative literature, solidary liability should be established restrictively and not generally. The liability for nonperformance of multiparty contractual obligation, just as the contractual liability for damage arising from nonperformance, is solidary, if it explicitly provided so by a clause in the contract.
The new Hungarian Civil code prescribes solidary liability of joint tortfeasors as a general rule, instead of divided liability, where the share of the tortfeasors is determined taking into account their contribution in causing of or their accountability for the damage. The focus of this article is the juridification of the public domain, which took place in Germany in the period of 16thth centuries.
Juridification is perceived here as a manifestation of a certain ideology which shrouded, as it does currently, the need for bringing order to the state and the belief that this may be accomplished through the meticulous regulation of the public sphere. The constantly increasing number of provisions is presented by the public authorities as beneficial to the public good and, per facta concludentia, it is perceived as such by a wide circle of indoctrinated recipients. Juridifaction; Polizeiwissenschaft; cameralism; ideology; German science; police state; well-ordered state; science of police.
From very soon the forced execution of tax debts followed a different path to the rest of debts. Although we have no news about the details of the application of the manus iniectio, the legis actio per pignoris capionem marks the origin of the executive privilege of the tax credit, which does not seem to have been subjected to the actio iudicati proper of the process per formulas. The sources, on the other hand, provide detailed information on the application of the singular execution pignus in causa iudicati captum to the levying of tax debts.
Our study can be considered as a brief contribution to the well-disputed questions of the so-called inexistence, invalidity, and ineffectiveness of legal transactions in Roman law and in its subsequent fate. As a theoretical starting point, we emphasize that there are four levels of ability for producing legal effects: 1. After the Introduction, the problem of inexistence of legal transactions, some questions of the invalidity of legal transactions e.
Finally, our most important conclusions will be summarized. Juridical act; inexistence; invalidity; ineffectiveness; punitive character of invalidity; terminological inconsistency and the great variety of Roman law sources concerning invalidity; nullity and annulment of contracts; convalescentia; conversio; partial invalidity; revocation of will.
This study deals with the dogmatic issues related to the origin and basic economic purpose of the ancient Roman hereditary building lease. It introduces the development of superficies, the process of having a contractual basis then gradually becoming a legal institution belonging to the right in rem during the history of Roman law.
The analysis breaks with the thesis drawing a parallel between superficies and hereditary lease emphyteusis , which has been prevailing in literature for a long time. In order to determine the exact content of hereditary building lease first of all it tries to give a clear picture of the causas establishing superficies by the thorough analysis of the relevant primary legal sources. Roman law; hereditary building lease; superficies; inaedificatio; solarium; emphyteusis; economic significance; causas establishing superficies; primary entitlement; right of building use.
Sumptuary laws, the legislative measures of the Roman republic and early imperial era, were aiming to restrain extreme and extravagant expenditure via limiting the amount of money spent on feasts, games, funerals, weddings and other social events. Not much interest is shown in sumptuary laws: contemporary jurisprudence regards it as a limitation of property, a minority of authors deem these laws the results of a social legislation, whereas earlier secondary works put a stress on their historic impact.
As a first step in the detailed research of the topic of sumptuary laws, this paper intends to give an outline of the actual content of these laws, in a chronological order. Such a primary source-based analyses could serve as the first step towards a better understanding of the Roman concept of limitation of property. Sumptuary laws; leges sumptuariae; property; limitation of property; luxury; extravagance; Gellius; Macrobius.
The morning-gift as an instrument must have been an integral part of the legal system of the era for decades or centuries. In the history of Hungarian law, the instrument of morning-gift existed until the time of the 19th century civil law codification efforts; even during the discussions on the civil law bill debates, its basic form was intended to be eliminated, whereas written morning-gift was wished to be kept.
However, in the second half of the 19th century, it was pointed out that whereas specific sums were favourable in former times, as the given sum was the amount payable to the wife as a minimum, the inflation caused the sums specified in the legislation to be ridiculously low. The Hungarian legislation was able to concentrate its powers on modernizing the organizational system of the state and forming the burgeouis state after the Compromise. In my paper I would like to demonstrate the efforts made in Hungary to create uniform regulation on civil servants at the end of the 19th century and at the beginning of the 20th century based on legal literature and National Assembly transcripts.
Hungary; public administration; civil service; civil servants; National Assembly; Association of civil servants; service pragmatics; pension; appointment. Due to the strong position of Islam in Turkish context the issue of secularism is the first and foremost significant principle of modern Turkey that has always remained on the national agenda as the most polarizing political problem.
In my opinion Islam in Turkey was never completely abandoned but in fact has been continuously and strategically used in Turkish political life for pragmatic reasons. So there is no exaggeration to say that the secular Turkey's most successful political ideologies, trends contains noticeably Islamic ideas, elements. In this paper the relationship between Turkish nationalism, identity and Islam is examined in the Turkish nationalist debates of the late Ottoman and early Republican era. I focus only those disputes in which the compatibility between the ideas of Islam, nationalism and modernism is proven.
I analyze the two most significant thinkers of the late Ottoman era because they influenced the dominant thinkers of the officially secular Kemalist era which created the ideological basic of the present Turkey. The present article offers the single magisterial view to be found in a Gierke, a Carlyle, or an Ullmann. Its aim is, rather, to present a conspectus, as comprehensive as is possible within prescribed limits of space, of the present state of historical scholarship in the field surveyed.
Such a conspectus need not be, nor is it here, so neutral as to preclude critical assessment. The judgements of the authors concerned have been brought to bear upon the issues arising in scholarly debate; and since the division between one article and another cannot be absolute and rigid, there is room for differences of emphasis and approach in the handling of topics that are relevant to more than one article.
It is hoped that such differences do not amount to contradictions and that their presence may yield a degree of cross-fertilisation rather than confusion. The regulated mobilization and distribution of the labour force is a process in which individual workers are allocated to work positions in specific branches or fields of social production in such a way as to enable together the functioning of the overall social work. After the end of World War II was a labour shortage in Czechoslovakia and of course the Czechoslovak economy focused on the needs of the war.
The structure of the labour market the employment rate and distribution of the labour force in individual branches and regions was completely uneven. The compulsory recording of all changes in employment relationships was gradually implemented. A job seeker and also an employer had always the duty to apply to the Labour Protection Office when seeking or offering a job Under Ordinance No.
The award prior approval of a competent District Labour Protection Office is the most important requirement to enter into the valid employment relationship apprenticeship. In Czechoslovakia was in — planned the labour force mobilization based on a voluntary only for some individual areas of the economy. Only after two years the state proceeded to the central planning of the labour force mobilization.
At the turn of the s and s, plan-based labour force management can be divided into reproductive movement of the labour force, recruiting new labour resources from adult citizens capable of work who had not yet been engaged in the work process or redistribution of the labour force placement of workers within sectors. School graduates represented the largest labour recruitment as for the number of workers.
The socialist law knew three major methods of the planned movement of the labour force: the selection of job seekers carried out by social authorities, recruitment of workers, direct administrative orders to place workers into the labour force. Presented work deals with the issue of unconstitutionality of the Stamp Act, issued by British Parliament in the Authors analyse the primary sources obtained from the Yale University database of Avalon project in context with literature related to the issue in minor extent Czech and primarily English.
Because of the extent of the issue, only one particular colony of the Thirteen was chosen — the colony of Connecticut. The work tries to argue, that there was no formal imperfection of the Act, and so it had to be repealed not because of legal reasons, but because of the reasons presented by a public opinion. Eva Kell — Sabine Penth Hrsg. Die Saarregion im Umbruch Johannes M. Geisthardt: Zwischen Princeps und Res Publica.
Tacitus, Plinius und die senatorische Selbstdarstellung in der Hohen Kaiserzeit. Christian Fischer — Walter Pauly Hrsg. Oktober The French Revolution of is the most important event in modern history. Whilst in Europe the Revolution in the first three and a half years was regarded as a mere change of the competences of the monarchic power. In the field of legislation, the monarchs tried to realize some liberal ideas in order to push back too many revolutionary ideas.
France was given by Napoleon the Code civil In all legislations, political rights were not guaranteed — they referred only to the economic field. In the times of absolute monarchies, political rights had no place. These three codifications were a compromise between the uprising liberal ideas personal freedom, propriety rights, etc. They lasted for centuries. This essay examines the reform in criminal procedure promulgated in under Minister of Justice Julius Glaser. An aspect of the constitutional reforms associated with the establishment of the dual monarchy of Austria-Hungary, the introduction of trial by jury served to promote a sense of citizenship among the public.
Glaser emphasized the centrality of the individual conscience of jurors in determining the verdicts in criminal trials and implicitly applied liberal values in evaluating the proper qualification of a well-developed conscience. Julius Glaser, liberalism, jury trial, criminal procedure, conviction intime. The conduct of prosecutions had also improved. They were generally no longer carried out in a sneering hectoring manner with witnesses mercilessly browbeaten or bullied. Dramatic types of 19 th Century advocacy, in which counsel was prepared to use mannerisms, tricks of speech and gestures to heighten the effects of their pleas to juries, was replaced by a conversational and matter of fact tone.
The idea that to cross-examine meant to examine crossly had almost vanished. Appeals to juries were now to reason combined with a controlled, subtle and focused appeal to emotion. Jury trials in civil cases had continued to decline. Advocacy before judges was concerned with facts and the law, not oratorical flourishes. Fewer criminal trials before juries took place as the jurisdiction of the magistrates had widened further. The more restrained and conversational style of advocacy before criminal juries may have been to some extent influenced by that of the civil courts, where the leaders of the bar appeared more often and increasingly without juries.
Two dominant members of the bar during the first half of the 20 th Century were Patrick Hastings and Norman Birkett. Their styles, because of triumphs linked with them, were influential on those of other barristers. Hastings was a master of direct forcible speech without any embellishments or ornamentation and prized brevity. The Neo-Babylonian period is a period that was marked by an outstanding development of Babylonian society.
Of course, the legal phenomenon is marked so, so many examples can be found of this legal development. This period corresponds to almost a thousand years, from the beginning of the first millennium BC. On the other hand, there is a stock of thousands of documents from the Neo-Babylonian period, which have not yet been published in their great majority. These documents, however, show that it was a question of a legally and economically developed society.
To understand this period, it is plausible to analyse the sources in a comparative legal history perspective, specially with the Roman Private Law. Thus, we understand that the concepts and Roman Private Law institutions should be used as a communication element in scientific research in history of ancient law. Even with losses as the terminological precision, there dogmatists common elements sufficient for such use modern terms, suiting also the economic purpose of these legal forms.
The article presents the results of author's research of the origins of the general concept of contract in continental legal science in the Middle Ages and early Modern Times. This general concept marks one of the key features of the legal style in civil law countries, unknown to Roman jurisprudence, Muslim fiqh or Anglo-American common law. The formation of the general concept of contract proves to be the outcome of several generations of jurists archived through the combination of two models of contract in the medieval ius commune: agreement-based in the commentaries on Roman law and promise-based in the church canons.
It is argues that the synthesis of the two models in the 16th century is due to the efforts to reduce the Roman classical law to an art as in the case of the French humanists or to explain every rule of positive contract law through the ideal concepts of natural law and commutative justice as in the case of Spanish legal thinkers.
The representatives of the Spanish late scholasticism Domingo de Soto, Louis de Molina, Leonard Lessius aimed at explaining all the provisions of the positive contract law in the sense of the higher moral and theological principles of natural law, as it was laid out in 'Summa Theologica' by Thomas Aquinas.
The author looks into the relevant works of the French and the Spanish jurists to analyse the definition of contract, its criteria, and to trace their origins in the legal commentaries of the medieval civilians and canonists, as well as in the medieval and antique treatises on moral theology and philosophy.
The analysis allows for critical assessment of the inconsistencies and contradictions of the general concept of contract in the doctrines at the beginning of Modernity. The states on Balkan peninsula received Roman law through the mediation of the Byzantine Empire. The reception of the Byzantine law-books was made easier in the Balkan states by the fact that substantive law was not separated from the law of procedure.
Private law was dealt with in conjunction with financial, criminal, and canon law. Its goal was to harmonize Islamic law with European law, especially with the French Code civil. After gaining independence a code of the law of obligations was promulgated in and another one pertaining to the law of things in The traditions of Roman law they relied on are still there in the more recent and similar codes of and The influence of the German Pandectist School can also be seen in the legal science in Bulgaria. This paper analyses the issue of suicide in the sources of Roman law, primarily criminal law.
In the British Consul of Morocco stated that as part of his government he is around to abolish the slavery permanently, and do everything in order to introduce the suppression of the slave trade measures. To this statement that was addressed to I. Such and similar questions lead both to too low and too lofty answers, although the phenomenon is such natural, as the sun rises. The institution of slavery actually existed since time immemorial in the ancient civilizations: in Asia Africa Europe and in America before Columbus.
Accepted and even supported the Judaism, Christianity, Islam and other world religions. The institution officially survived in the Ottoman Empire until significantly longer than the transatlantic slave trade. In my essay I study the reason of this phenomenon, especially the slavery traditions of the Ottoman Empire, the religious and secular legal background comparing the most important features to the transatlantic slave trade and slavery.