1. Pegas’ works and the objective of this paper1
1Among Portuguese jurists of the 17th century, Manuel Álvares Pegas (1635-1696) probably was one of the best known. Unlike most of his contemporary jurists of comparable fame, often judges of Portuguese highest court (Casa da Suplicação de Lisboa), professors of the only Law school of the kingdom (Coimbra University) or both, his professional activities were connected to the advocacy, to which he dedicated almost four decades from his graduation in 1658 until his death. Diogo Barbosa Machado reported the success of Pegas’ career as lawyer, but he emphasized the relevance of his juridical writings, for example in this excerpt: “There was no controversial question among important litigants in ecclesiastical and secular jurisdiction in which his ‘flight feather’ was not seek”2.
2A review of the published works of Pegas demonstrates that he cultivated almost all genres of juridical literature of the ius commune3. Probably his most influential book was the Commentaria in Ordinationes Regni Portugalliae, whose fourteen volumes do not approach the Portuguese general Laws (Ordenações do Reino) in full, but only its first two books. Pegas wrote also monographic works (Tractatus de maioratus) and resolutiones forenses (Resolutiones Forenses Practicabiles in quibus multa, quae in utroque foro controversa quotidie versantur uberrima legum, & Doctorum allegatione resolvuntur). Amid his large production, this paper will discuss an aspect (the role of foreign law) in a very precise work written by Pegas, the Allegaçam de direito por parte do excelentíssimo senhor Dom Pedro de Menezes sobre a sucessão do título, e estado de Villa-Real, e Morgados da dita Caza e bens patrimoniais que a ella pertenencem, e ao dito Senhor sucessor de ella, a book whose essence was related to the practical activities of the author. That demonstrates clearly the way Pegas – a classical representative of the jurist’s model in the ius commune – usually dealt with juridical problems: he set out with particular cases and built an argument to justify a probable solution to the problem with no apparent intention to expand this solution to wider cases nor analyze it in a systematic perspective4.
2. Allegationes and its arguments
3A clear intention of dealing with particular cases could be observed in what Otto Gehrke called Entscheidungsliteratur, a generic concept in which both consilia (Konsiliensammlungen) and decisiones (Rechtsprechungssammlungen) were addressed5. Both have the same feature of proposing a solution for a concrete problem arising from forensic practice, which was exactly the point of departure of every argumentative unit of Pega’s book (decisio, consilia, consultatio). In the decisiones6, the authors – often judges – intended to offer solutions to questions faced by the courts; therefore, it is possible to say that judges mainly intended the arguments to convince their colleagues about the correctness of the proposed solution.
4The allegationes are quite connected to this perspective, but some differences are noticeable: despite its close relation to forensic practice and the structural role in the arguments of casuistry and concrete problems, allegationes were not written with the aim of providing a decision, but with the intention of convincing somebody who was endowed with arbitrium and power of deciding7. As in most of the consilia, allegationes’ authors were lawyers8, but in consilia their role was precisely answering (responsa) a question – their opinion was external to the problem and was authoritative enough to constitute a solution to the controversy. In the allegationes, the author was an internal participant in the question and had not the same position of the recipient of the text: he was a lawyer hired to defend a point of view and had no impartiality9. That is the reason why Mario Ascheri described the allegationes as defensive memories of lawyers10, emphasizing their forensic origins and the arguments’ partiality, as well as their position as the genre of juridical literature in the ius commune with the closest relations to forensic practice and advocacy.
5As their aim was to convince judges about the correctness of their argument, the authors of allegationes needed to construct a very well-reasoned text – actually, a better text than the one presented by the other litigant. To do so, they had to use everything that could persuade the reader. In previous works11, I have analyzed Portuguese decisones literature regarding how some elements (case law, statutes and authority of jurists) acted in the formation of the argument in each decisio. The same analysis can be done with allegationes, but, considering the limits and the objective of this paper, I will highlight one precise point: the role of foreign law in the argument’s construction in the allegatio.
3. Foreign law and its use
6During the age of ius commune, differences between the local origins of authors and books and the context in which the texts were applied were not properly a problem. From what is commonly called rebirth of jurisprudence (around the 11th and 12th centuries) until at least the 17th or 18th centuries, factors like the similarity of the universities’ curricula12, the use of Latin as a lingua franca of knowledge and the wide circulation of ideas and works of some jurists contributed to create an ambience in which there were few differences, especially – but not exclusively – in Private Law, in most of Western Europe13. This perception has been reinterpreted in some recent studies that criticized this traditional view of the ius commune14, but, despite that, the material collected among Portuguese jurists constitutes evidences that at least until the 17th century the great majority of quoted jurists were not Portuguese15.
7Bartolus, Baldus, Alexander de Tartagnis, Filippo Decio, Giacomo Menochio, among others, were quoted and their opinions were useful because of their importance to ius commune and precisely to the opinio communis. Their names were so important that they functioned as arguments from authority. Relating how an author’s opinion became endowed with authority goes beyond the objectives of this paper16. The authority’s undeniable character can be seen otherwise when, for example, Portuguese General Law (Ordenações do Reino) recognized as formal source of law (Book 3, Title 64, 1) the opinions of Accursius and Bartolus. There was no similar measure for the opinion of Portuguese jurists, what proves that the authority was not related to local origin.
8Despite the close relations and interactions between particular laws and ius commune, the differences amid legal systems were noticeable. Legal pluralism, here understood as a plurality of legal orders in the same community and the same space17, guaranteed heterogeneity and the coexistence of many legal systems in the same territory, because the space of each legal system could coincide with the space of other legal systems, including in the same territory18. With national laws (ius patrium or, more precisely, ius regnum, in the terms proposed by Italo Birocchi19) the interaction appeared in a different way. Foreign law was used by national courts, as the work of Dauchy, Bryson and Mirow demonstrated20, but, except with the opinion of foreign authors, it was not that common, despite the possibility of what was described by Gino Gorla as the application of a lex alii loci or externa when in lex loci or in ius commune a decisus was not found21. Considering the use of statutes and judicial decisions of other states in the Portuguese decisiones literature, it is perceptible that, in the few cases it happened, the quotation was indirect, often through decisiones books written by authors from other countries.
9As the main feature of the allegationes was exactly being a lawyer’s trial brief, and that means the necessity of using strong arguments to convince the judges (who were the recipients of the original texts) about the allegation, arguments such as those picked up from foreign law are found. In the following pages, the use of foreign law in Pegas’ allegationes will become clear.
4. Allegaçam de direito por parte do excelentíssimo senhor Dom Pedro de Menezes: an overview
10According to the literature review conducted by Diogo Barbosa Machado in the 18th century22, Pegas published nine allegationes during his lifetime23, and four of them were reprinted in Lisbon in 1728 under the title Allegaçoens de Direito. The text here discussed is one of the reprintings24, although the year of the first publication was not indicated on its cover.
11Like three of the four books in the 1728 edition, the Allegaçam de direito por parte do excelentíssimo senhor Dom Pedro de Menezes dealt with issues on maioratus and their succession. A maioratus was a right of succession in a good, often a real property, that should be conserved in a family25, and this succession was required to obey primogeniture rules. Primogeniture was in the center of the maioratus’ definition of the most relevant work about it, the one written by the Spanish jurist Luís de Molina26. António Manuel Hespanha, mentioning Jorge de Cabedo27, affirmed that the intention of every maioratus was preserving the family’s memory, and that should be considered in the interpretation of the succession rules – they must reinforce rather than disturb this objective28.
12In this case specifically, Pegas discussed the succession of a land called Casa de Villa-Real, which allegedly would be up to D. Pedro de Menezes, Pegas’ client in this lawsuit. The succession included not only the land itself, but also the maioratus, the jurisdiction over the land, the privileges and all the goods attached to the propriety, as well as the title of Marquis of Villa-Real29. Against the succession right of D. Pedro de Menezes raised both the Portuguese Crown and the Count of Castanheira, a nobleman with interest in the land.
13The controversy was related to the origins of the rights over the land, which were based on a royal donation dating off to the beginning of the 14th century and subject to the general rules of succession of royal goods, the Mental Act (Lei Mental). If these rules controlled the case, D. Pedro de Menezes would not be considered the legitimate heir because he was a descendent in female line of the original land’s owner, the Count of Villa-Real30– according to the Mental Act, no woman could be donee of a royal good in the Kingdom. Pegas did not deny the familiar origins of Dom Pedro de Menezes. According to his proposal, the Casa de Villa-Real and the rights over that land and other lands, especially over the lands of Leiria, should not be considered royal goods, and consequently not subjected to the Mental Act, but a patrimonial maioratus subject to the general rules of succession described in the Ordenações do Reino (Book 4, Title 100)31. With the acceptance of Pegas’ arguments by the court, D. Pedro de Menezes would be restored as owner of the land.
5. How foreign law appeared in the text
14The short description of the book’s content meets the objective of this paper, which is to understand how foreign law was used by Pegas. To comprehend the role of foreign law is much more important than to analyze the arguments presented by the author. This section of the paper will consider three elements of foreign law that arose in this instance: statutory law, case law and authority of jurists32.
15In many places in the text, Pegas compared the Portuguese laws about maioratus and royal donations with Castilian laws. That happened with one of the most important arguments of the text, when he argued that the Mental Act, as well as its Castilian parallel33, should not be applied to royal donations subsequently converted into an onerous contract3435. According to Pegas, the lands of Leiria were object of a bilateral contract between the King and one of his vassals, and the King was obliged to accomplish their contracts as a private person36, argument based on the opinio communis37. Pegas transcribed an excerpt of Castilian laws38 about remunerative donations just before quoting theologians like Isidore of Seville and Saint Gregory39, and then affirmed the possibility of donating lands and jurisdictions as a remuneration for services and merits40.
16If finding direct mentions of statutory law in this book is not hard, the same does not happen with case law. Pegas referred only once to decisions of a foreign court, the Rota Romana. The mention was nevertheless generic and indirect, because he made it by the mediation of authors like Francesco Merlino, Girolamo Mariliani and Garsia Mastrillo, who had referred to decision of the Rota Romana in their works, and the allegatio did not include even minimal details such as the judgement’s date or names of judges and litigants41. Detailed references about the judgements, which were common in the decisiones literature42, can be found in this work only once, when Pegas referred to a case decided by the Casa da Suplicação43.
17From these three elements, the authority of jurists is doubtless the one in which foreign law is most perceptible. That happened not only because of the quoted authors, mostly not Portuguese, but actually because of how their opinions were used by Pegas in his arguments. An overview on the quoted authors and the number of quotations is important to prove something that is not a surprise: they were mostly foreign, especially Italians and Spaniards. If, by one hand, there are more quoted Portuguese authors than in books of the previous century, such as in António da Gama and Álvaro Valasco44, by the other it is undeniable the leading role of authors identified with the opinio communis– most of them not Portuguese45. Among the ten most quoted authors in this allegatio, only Jorge de Cabedo was Portuguese. We could find five Italians (Giacomo Menochio, Bartolo, Baldus de Ubaldis, Giovanni Pietro Sordi and Girolamo Gratii), three Spaniards (Luís de Molina, Juan del Castillo Sotomayor and Juan Bauptista Valenzuela) and one French (André Tiraqueau), most of them with specific works dedicated to succession, primogeniture and maioratus46.
|Author||N° of mentions||Origin|
|Bartolus de Saxoferrato||31||Italian|
|Luís de Molina||29||Spanish|
|Juan del Castillo Sotomayor||27||Spanish|
|Baldus de Ubaldis||24||Italian|
|Juan Bauptista Valenzuela||23||Spanish|
|Giovanni Pietro Sordi||20||Italian|
|Jorge de Cabedo||17||Portuguese|
|Juan de Solórzano Pereira||15||Spanish|
|Juan Bautista Larrea||14||Spanish|
|Marco Antonio Pellegrini||13||Italian|
|Alexander de Tartagnis||12||Italian|
|Gabriel Pereira de Castro||12||Portuguese|
|Melchor Peláez de Mieres||12||Spanish|
|António da Gama||9||Portuguese|
|Carolo de Tapia||9||Italian|
|Juan Pedro Fontanella||9||Spanish|
|Francisco Caldas Pereira||8||Portuguese|
|Nicolau Rodríguez Fermosini||8||Spanish|
|Giacomo Antonio Marta||8||Italian|
|Marcus Salón de Paz (Burgos de Paz)||7||Spanish|
|Diego Covarrubias y Leyva||7||Spanish|
|Francesco Merlino Pignatelli||6||Italian|
|Rolando do Valle||6||Italian|
|Antonio de Sousa de Macedo||5||Portuguese|
|Alfonso de Azevedo||5||Spanish|
|Ludovico de Casanate||5||Spanish|
|Giasone del Maino||5||Italian|
|Juan de Matienzo||5||Spanish|
18Table 1 – Books cited more than five times in the Allegaçam de direito por parte do excelentíssimo senhor Dom Pedro de Menezes, by Manuel Álvares Pegas
19Table 2 – Origins of the authors quoted more than five times in the Allegaçam de direito por parte do excelentíssimo senhor Dom Pedro de Menezes, by Manuel Álvares Pegas
20Tables 1 and 2 reinforce the relevance of Italian authors in Portugal still in the middle of the 17th century, because 26 of the 54 authors with more than five mentions are somehow related to the Italian Peninsula. Most of the authors were known by their works concerned about ius commune problems and in an ius commune perspective, such as Bartolus de Saxoferrato, Baldus de Ubaldi, Paolo di Castro or Giacomo Menochio. Despite that, there are names in the list whose works, especially decisiones and allegationes, were directly related to their particular juridical experiences. Sicilians Mastrillo (Decisiones S. Regiae Conscientiae Regni Siciliae) and Giurba (Decisiones novissimae Consistorii S. Regiae Conscientiae), Marta (Decisionum novissimarum almi Collegii Pisani causarum delegatarum vel ad consilium sapientis transmissarum vota doctoris Martae) and Neapolitans Capecelatro (Decisiones novissimae S. Regii Consilii Neapolitani) and Tapia (Decisiones Sacri Neapolitani Concilii), for example, were quoted because of their decisiones; Merlinus’ books were related to Neapolitan Courts and Lucca’s ecclesiastical Court; Francesco Mantica published both decisiones (Decisiones Rotae Romanae) and a purely ius commune monography (Tractatus de Coniecturis Ultimarum Voluntatum). The long-term influence of Italian jurists in Portugal is unquestionable when names of the 14th and 15th centuries, particularly those who wrote consilia (Paolo di Castro, Alexander de Tartagnis, Filippo Decio or Giovanni Pietro Sordi) were still in use.
21As other jurists of his time, Pegas largely used the authority of foreign authors to support his statements. One of the leading arguments in which the allegatio was based, the king’s obligation of fulfilling promise established in a donation47, illustrates that. He supported this remark with a citation of Castilian law48 and especially foreign authors (Juan de Matienzo, Giovanni Pietro Sordi and Juan de Solórzano Pereira), but he also mentioned literary sources (the medieval poem Ligurinus, attributed to Gunther of Paris) as well as religious (the Bible), in a clear example of how an author constructed his argument using all sources he considered persuasive, independently of a territorial context. To support his statement that D. Pedro de Menezes should not suffer any damage as a consequence of the judgement that confiscated the goods of the last Marquis of Villa-Real, Pegas used Mariano Soccino Junior, Angelo di Castro, Carpan and Sebastiano49.
22In the Section VI of the Allegaçam, when the author defended the already mentioned necessity of fulfilling contracts and donations, Pegas introduced three arguments: justice and fairness, public convenience and reason of state. In this last point the influences of foreign authors are quiet perceptible. Unlike most arguments, the idea of reason of state is not properly an ius commune discussion in the same categories of donations, succession or maioratus. It had been introduced in the first half of 16th century by works such as The Prince of Niccolo Machiavelli, but its reception, especially in Catholic countries, happened, at least officially, through the rereading of Tacitus’ works. The long discussion about reason of state in this allegatio reflects the same combination of elements of other parts of the text, which included references to foreign statutes50, literature51 and jurists, such as Jerónimo Castillo de Bobadilla and Aymon Cravetta, but it included also names seldom observed in lists of quotation in authors of the same age, such as Tacitus and Jean Bodin. Pegas probably was one of the first Portuguese jurists to discuss state reason in both theoretical and forensic perspectives52, using the theme to defend in this case the limitation – in this very word53 – of the king’s power54.
23Lastly, the use of foreign authors by Pegas could be useful to refer to practical situations that happened in other countries with no impact in the courts. Pegas transcribed an excerpt of an allegatio of Juan Bautista Larrea55, in which he dealt with the enlargement of the office of Correo Mor in Castile56. As an example of royal donation latter converted into an onerous contract, in the same way of what would have happened with the lands of Leiria, Pegas quoted Juan Bauptista Valenzuela in a reference to a donation established in Castile by the King Philip I57.
6. Final comments
24This review of the Allegaçam de direito por parte do excelentíssimo senhor Dom Pedro de Menezesilluminates the circulation of ideas in the age of ius commune. The way Pegas used foreign law as an element to reason statements reveals an important feature of this context. Statutes, case law and opinion of authors of other countries, including even enemy states, such as Castile when Pegas wrote this text, seem to have had the same importance as other sources of law. The origins, in a territorial perspective, of the authorities cited were not important, provided that their reasoning was enough to convince the reader – or, in other words, that they had enough authority. The table of citations reveals the presence of Portuguese authors with a frequency much higher than in books of the 16th and first haft of the 17th centuries, notwithstanding the unquestionable leading role of foreign authors.
25An element of great importance to understand the use of foreign law during the age of iuscommune emerges precisely from the nature of the text here analyzed: the allegationes were a memorial written by a lawyer. Consequently, the way foreign law appeared and was used by jurists reflects its presence in the forensic practice of Portuguese courts, influencing the latter construction of national law in a crucial moment of the European legal history. Analyzing these texts, whose character makes them a genre of juridical literature at the intersection of forensic practice and scholarly knowledge, we can observe that some modern differences, such as theory and practice and even national and foreign law, must be seen in a diverse perspective. The circulation of ideas was not limited by barriers of national contexts.
Amaral, Antonio Cardoso do (1610), Liber utilissimus iudicibus et advocatis, Ulysipone.
Cabedo, Jorge de (1620), Practicarum observationum sive decisionum Supremi Senatus Regni Lusitaniae, pars prima, Antuerpiae.
Larrea, Johannes Baptistam (1699), Allegationum fiscalium pars prima, Lugduni.
Machado, Diogo Barbosa (1752), Bibliotheca Lusitana. História, crítica, e cronológica, 3, Lisboa.
Molina, Luís de (1601), De Hispanorum primogeniorum Origine ac natura : libri quatuor, Coloniae.
Pegas, Manuel Álvares (1738), Allegaçoens de Direito, Lisboa.
Albani, Benedetta, Samuel Barbosa, Thomas Duve (2014), La formación de espacios jurídicos ibero-americanos (s. XVI-XIX): actores, artefactos e ideas. Comentarios introductorios, in: Max Planck Institute for European Legal Historty research paper series, 7.
M. P. Alonso Romero, Maria Paz (2012), Del “amor” a las leyes patrias y su “verdadera inteligencia”: a proposito del trato con el derecho region en la Universidad de Salamanca durante los siglos modernos, in: M. P. Alonso Romero, Salamanca, escuela de juristas: estudios sobre la enseñanza del derecho en el Antiguo Régimen, Madrid, 2012, pp. 165-189.
Ascheri, Mario (1989), I giuristi consulenti d’Ancien Régime, in: M. Ascheri, (ed.), Tribunali, giuristi e istituzioni dal medievo all’età moderna, Milano, 185-209.
Barrientos Grandón, Javier (1995), Derecho común y derecho indiano en el Reino de Chile, in: Memoria del X Congresso del Instituto Internacional de Historia del Derecho Indiano, México,133-160.
Beck Varela, Laura (2016), Bártolo y “las demás leyes del Reino”: la formación del jurist según del “Modo de pasar del Doctor Bustos” (c. 1587), in: Annali di storia delle universita italiane, 20, pp. 3-29.
Birocchi, Italo (2006), La formazione dei diritti patri nell’Europa Moderna tra politica dei sovrani e pensiero giuspolitico, prassi ed insegnamento, in: I. Birocchi, A. Mattone (ed.), Il diritto patrio tra diritto comune e codificazione (secoli XVI-XIX), Roma,17-71.
Cabral, Gustavo César Machado (2015). Case law in Portguese decisiones in the Early Modern Age: Antonio da Gama’s Decisiones Supremi Senatus Lusitaniae, in: fórum historiae iuris – erste europäische Internetzeitschrift für Rechtsgeschichte.
Cabral, Gustavo César Machado (2017), Literatura jurídica na Idade Moderna: as decisiones no Reino de Portugal (séculos XVI e XVII), Rio de Janeiro.
Dauchy, Serge, Hamilton W. Bryson, Matthew C. Mirrow (ed.), (2010) Ratio decidendi. Guiding principles of judicial decisions, volume 2: ‘Foreign’ Law, Berlin.
Duve, Thomas (2012), Von der Europäischen Rechtsgeschichte zu einer Rechtsgeschichte Europas in globalhistorischer Perspektive, in: Rechtsgeschichte – Legal History, 20, 18-71.
Falk, Ulrich (2006), Consilia. Studien zur Praxis der Rechtsgutachten in der frühen Neuzeit, Frankfurt am Main.
Gehrke, Heinrich (1974), Die privatrechtliche Entscheidungsliteratur Deutschlands.Charakteristik und Bibliografie der Rechtsprechungs- und Konsiliensammlungen vom 16. bis zum Beginn des 19. Jahrhunderts, Frankfurt am Main.
Gorla, Gino (1973), Il ricorso alla legge di un “luogo vicino” nell’ambito del diritto comune europeo, in: Il Foro Italiano, 96, 5, 89-108.
Hespanha, Antonio Manuel (2015), Como os juristas viam o mundo (1550-1750): Direitos, estados, pessoas, coisas, contratos, ações e crimes, Lisboa.
Hespanha, Antonio Manuel (1982), História das Instituições. Épocas medieval e moderna, Coimbra.
Hespanha, Antonio Manuel (2016), Pluralismo jurídico e direito democrático. Prospetivas do direito no séc. XXI, Lisboa.
Meccarelli, Massimo (1998), Arbitrium: un aspetto sistematico degli ordinamenti giuridici in Età di diritto comune, Milano.
Meccarelli, Massimo (2015), The assumed space: pre-reflexive spatiality and doctrinal configurations in juridical experience, in: Rechtsgeschichte, 2015, 23, 241-252.
Mecarelli, Massimo, Maria Julia Solla Sastre (2016), Spatial and temporal dimensions for Legal History: an introduction, in: M. Mecarelli, M. J. Solla Sastre (ed), Spatial and temporal dimensions for Legal History: research experiences and itineraries, Frankfurt am Main, 2016, pp. 3-24.
Mirow, Matthew C. (2010), Conclusion: foreign law and the birth of comparative law, in: Dauchy, S. Hamilton W. Bryson, Matthew C. Mirrow (ed.), Ratio decidendi. Guiding principles of judicial decisions, volume 2: ‘Foreign’ Law, Berlin, 229-236.
Osler, Douglas J. (1997), The myth of European Legal History, Rechtshistorisches Journal, 16, 393-410.
Stolleis, Michael (1990), Staat und Staatsräson in der frühen Neuzeit: Studien zur Geschichte des öfentlichen Rechts, München.
Tau Anzoátegui, Victor (1992), Causísmo y sistema. Indagación histórica sobre el espíritu del Derecho Indiano, Buenos Aires.
Vallejo, Jesús, Beck Varela, Laura (2012), La cultura del derecho común (siglos XI-XVIII), in: M. Lorente, J. Vallejo (ed.), Manual de historia del derecho, Valencia, 59-100.
Volpini, Paola (1996), Las Allegationes Fiscales (1642-1645) de Juan Bautista Larrea, in: Revista de Historia Moderna, 15, 465-502.
Wijffels, Alain (2010), Orbis exiguous. Foreign legal authorities in Paulus Christianaeu’s Law Reports, in: Dauchy, Serge, Hamilton W. Bryson, Matthew C. Mirrow (ed.), Ratio decidendi. Guiding principles of judicial decisions, volume 2: ‘Foreign’ Law, Berlin, 37-62.